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EEPOETS
OF
CASES AT LAW AND IN CHANCERY
ARGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
NOEMAN L. FREEMAN,
REPORTER.
VOLUME 111.
Containing Cases in which Opinions were filed in May, September
and November, 1884, in January, 1885, and some Cases
in which applications for Rehearing
were denied at the january
Term, 1885.
PRINTED FOR THE REPORTER.
PEINGFIELD
1886.
Entered according to Act of Congress, in the year 1886, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress at Washington.
H. W. ROKKER,
Stereotyper, Peintek and Binder,
Springfield, Illinois.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
Justices.
BENJAMIN E. SHELDON, Chief Justice.
JOHN SCHOLFIELD,* Chief Justice.
PINKNEY H. WALKEE,
T. LYLE DICKEY,
JOHN M. SCOTT,
JOHN SCHOLFIELD,
JOHN H. MULKEY,
ALFEED M. CEAIG,
ATTORNEY GENERAL,
JAMES McCAETNEY.
GEOEGE HUNT.t
REPORTER,
NOEMAN L. FEEEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
J. 0. CHANCE, Mt. Vernon.
clerk; in THE CENTRAL grand division,
ETHAN A. SNIVELY, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
E. F. DUTTON, Ottawa.
ALFEED H. TAYLOE, Ottawa.!
*Mr. Justice Scholfield became Chief Justice at the June term, 1884.
fHon. George Hunt was elected to the office of Attorney General for the
term of four years, on the 2d day of November, 1884, and was commissioned
and qualified January 30, 1885.
{On the 2d day of November, 1884, J. O. Chance and Ethan A. Snively
were reelected to the office of clerk in the Southern and Central Grand Divi-
sions, respectively, and on the same day Alfred H. Taylor was elected clerk
in the Northern Grand Division, each for the term of six vears.
JUDGES OF THE APPELLATE COURTS
DURING THE TIME OF THESE REPORTS.*
For the First District — Chicago:
JOSEPH M. BAILEY,
WILLIAM K. MCALLISTER,
ISAAC G. WILSON.
For the Second District — Ottawa:
NATHANIEL J. PILLSBURY,
GEORGE W. PLEASANTS,
LYMAN LACEY.
For the Third District— Springfield:
oliver l. davis,
chauncey l. higbee,
david Mcculloch.
For the Fourth District— Mt. Vernon:
DAVID J. BAKER,
GEORGE W. WALL,
THOMAS S. CASEY.
* In cases of appeals from or writs of error to any of the Appellate Courts,
which may be reported in this volume, where the names of the judges of
those courts are not given in the report, it will be understood the judges
constituting the court in that particular District named were as above stated.
TABLE OF CASES
REPOKTED IN THIS VOLUME.
A PAGE.
PAGE.
Abend v. Terre Haute & Indian-
Chicago, City of, et al. ads. Cul-
apolis R. R. Co
202
bertson & Blair Packing and
Alexander et al. v. Cunningham.
511
Provision Co
651
Allwood v. Cowen et al
481
Chicago, City of, ads. King
63
Ammondson v. Evan
506
Chicago, City of, ads. Launder .
291
Armstrong v. Warrington et al. .
430
Chicago, City of, v. Crosby
538
Askew v. Springer
662
Chicago, City of, v. O'Brien. . . .
532
Ayers v. City of Chicago
406
Chicago, Rock Island & Pacific
B
Bell v. Johnson
Ry. Co. v. Smith
363
374
Chicago Sectional Electric Un-
Bent ads. Stiger et al
328
derground Co. v. Congdon
Bentley et al. v. 0 'Bryan et al .
53
Brake Shoe Manf . Co
309
Bishop, Town of, et al. ads. The
Clark v. The People
404
People ex rel
124
Cline et al. v. Jones et al.
563
Bittinger v. Kasten et al
260
Congdon Brake Shoe Manf. Co.
Black v. Wabash, St. Louis and
ads. Chicago Sectional Elec-
Pacific Rv. Co
351
tric Underground Co
309
Board of Supervisors ads. The
Cowen et al. ads. Allwood
481
People ex rel
527
Crosby ads. City of Chicago. . . .
538
Brant v. Gallup et al
487
Culbertson & Blair Packing and
Brunei- v. Madison County
11
Provision Co. v. City of Chi-
Buck ads. Kratz
40
cago et al
651
Burton et al. ads. Perry et al, . .
138
Cunningham ads. Alexander etal 511
Curd ads. Supreme Council of
C
Royal Templars of Temperance
284
Call ads. McDaid
298
Carmody v. Chicago & Alton R.R.
D
Co. et al
69
Daly v. Wilkie
382
Chicago & Alton R. R. Co. et al.
Danforth v. Danforth
236
ads. Carmody
69
Davidson v. Reed et al
167
Chicago & Alton R. R. Co. v.
Davison el al. ads. Locke et al..
19
Goodwin et al
273
DeBuol v. Freeport & Missis-
Chicago Buildiug Society v. Haas
sippi River Ry. Co
499
et al
176
DeLand v. Dixon National Bank
323
Chicago, Burlington & Quincy
Dixon National Bank ads. De-
R. R. Co. v. Hans
114
Land
323
Chicago, City of, ads. Ayers ....
406
Drainage Comrs. ads. Kilgour. .
342
VIII
TABLE OF CASES REPORTED.
E PAGE.
Eames et al. v. Hardin et al 634
Eldridge v. Trustees of Schools
et al 576
F
Freeport and Mississippi River
Ry. Co. ads. DeBuol 499
Freeport and Mississippi River
Ry. Co. ads. Johnson et al . . 413
G
Gage v. Hervey 305
Gallup et al. ads. Brant 487
Gill et al. ads. Grand Tower
Mining, Manf. and Trans. Co. 541
Goodwin et al. ads. Chicago &
Alton R. R. Co 273
Graham v. The People ex rel. . . . 253
Grand Tower Mining, Manf. and
Trans. Co. v. Gill et al 541
Griffin v. Larned 432
II
Haas et al. ads. Chicago Building
Society 176
Haas v. Myers et al 421
Hanchett ads. The People ex rel. 90
Hannibal & St. Joseph R. R. Co.
v. Martin 219
Hardin et al. ads. Eames et al. . 634
Hans ads. Chicago, Burlington &
Quincy R. R. Co 114
Hervey ads. Gage 305
Holmes v. City of Mattoon 27
Hughes et al. v. The People, use,
etc 457
I
Illinois Central R. R. Co. ads.
Noble 437
International Bank et al. ads.
Jenkins 462
J
Jenkins v. International Bank
et al 462
Johnson ads. Bell 374
PAGE.
Johnson et al. v. Freeport & Mis-
Mssippi River Ry. Co 413
Jones et al. ads. Cline et al 563
K
Kasten et al. ads. Bittinger 260
Kilgour v. Drainage Comrs 342
King v. City of Chicago 63
Kratz v. Buck 40
li
Larned ads. Griffin 432
Launder v. City of Chicago 291
Ledwith et al. ads. Marvin et al. 144
Lehmann et al. v. Rothbarth. . . 185
Linington v. Strong et al 152
Litsey v. Whittemore 267
Locke el al. v. Davison et al. . . . 19
Lovell ads. Yocum 212
M
Madison County ads. Bruner. . . 11
Magnusson v. Williams et al. . . . 450
Martin ads. Hannibal & St. Jo-
seph R. R. Co 219
Marvin et al. v. Ledwith et al. . . 144
Mittoon, City of , ads. Holmes.. 27
McDaid v. Call 298
Mings v. The People ex rel 98
Mitchell ads. Tillotson et al 518
Mooney v. The People 388
Morrissey ads. North Chicago
Rolling Mill Co 646
Myers et al. ads. Haas 421
N"
Neff v. Smyth 100
Nichols, Shepard & Co. v. Spre-
mont : 631
Noble v. Illinois Cent, R. R. Co. 437
North Chicago Rolling Mill Co.
v. Morrissey 646
O
O'Brien ads. City of Chicago ... 532
O'Bryan et al. ads. Bentley et al. 53
Osterhage ads. Stumpf et al.. ... 82
TABLE OF CASES REPORTED.
IX
P PAGE.
Palmer v. Snell 1G1
Parker v. The People 581
People ads. Clark 404
use, etc. ads. Hughes
et al 457
ads. Moouey 388
ads. Parker 581
ads. Tarble 120
ads. Zimm 49
ex rel. ads. Graham 253
ex rel. ads. Mings 98
ex rel. ads. Peoria Fair
Association 559
- — ■ ex rel v. Board of Su-
pervisors 527
ex rel. v. Hanchett 90
ex rel. v. Town of Bishop
et al 124
ex rel. v. Trustees of
Schools 171
Peoria Fair Association v. The
People ex rel 559
Perry et al. v. Burton et al 138
R
Katcliff ads. Stark 75
Kay ads. Walker 315
Keed et al. ads. Davidson 1G7
Kothbarth ads. Lehmann et al. . 185
Byan ads. Ammondson 506
S
Sandoval Coal and Mining Co.
ads. St. Louis and Sandoval
Coal and Mining Co 32
Smith ads. Chic.igo, Rock Island
and Pacific Ry. Co 363
Smyth ads. Neff 100
PAGE.
Snell ads. Palmer 161
Spremont ads. Nichols, Shepard
&Co 631
Springer ads. Askew C62
Stark v. Ratcliff 75
Steib v. Whitehead 247
Stiger et al. v. Bent 328
St. Louis and Sandoval Coal and
Mining Co. v. Sandoval Coal
and Mining Co 32
Strong et al. ads. Linington. . . . 152
Stumpf et al. v. Osterhage 82
Supreme Council of Royal Tem-
plar* of Temperance v. Curd.. 284
T
Tarble v. The People 120
Terre Haute & Indianap. R. R.
Co. ads. Abend 202
Tillotson et al. v. Mitchell 518
Trustees of Schools ads. The
People ex rel 171
Trustees of Schools et al. ads.
Eldridge 576
W
Wabash, St. Louis and Pacific
Ry. Co. ads. Black 351
Walker v. Ray 315
Warrington et al. ads. Armstrong 430
Whitehead ads. Steib 247
Whitfceinore ads. Litsey 267
Wilkie ads. Daly 382
Williams et al. ads. Magnusson. 450
Y
Yocum v. Lovell 212
Z
Z'imm v. The People 49
CASES
AKGUED AND DETEEMINED
IN THE
SUPREME COURT OF ILLINOIS
John A. Bruner
v.
Madison County.
Filed at Mt. Vernon September 27, 1884.
1. Officers — compensation for official services— depends entirely upon
the statute. Compensation for official services rendered in behalf of the
State or for any public corporation, must rest alone upon statutory enact-
ment or contract. Unless the statute has made provision for the paj'ment
for services required of an officer and performed by him, he can recover no
remuneration for the same.
2. Paupers— two systems, county and township support. Under the
laws now in force in this State, two distinct systems are provided for the sup-
port of the poor, — one by the county at large, and the other by the several
towns composing the county.
3. Same — difference in the systems. The first imposes all the cost and
expense attending the care and support of paupers upon the county, while
the other places the entire charge and burden upon the several towns. In
the first the overseer of the poor is required to report his acts to the county
board, and act subject to such restrictions and regulations as that board may
prescribe. In the second he reports to the town auditors, and he is subject
to the restrictions and regulations of his town. Under the first named sys-
tem he is not entitled, as a matter of right, to any compensation for his ser-
vices, while under the other he is entitled to pay.
12 Bruner v. Madison County.
Statement of the case.
4. Overseer of the pooe — compensation. By section 36, chapter 53,
entitled "Fees and Salaries," the overseer of the poor (who is also supervisor
of his town) is entitled to receive two dollars per day when attending to town
business out of town, and one dollar for town business in his town, to be
paid from the town treasury when the service is for the town. When the
town is wholly responsible for the care and support of its paupers, his ser-
vices in looking after and providing their support are performed for the town,
and are town business, and he is entitled to the pay named; but when the
county is chargeable with pauper support, he is not rendering service for his
town, but for the county, for which the law has provided no compensation.
5. Supervisor— is a county as well as a toivn officer. A supervisor,
though elected as a town officer, is also made by law a county officer, as a
member of the county board, which is invested with power to "manage the
county funds and county business, except as is otherwise specifically pro-
vided."
6. Same — compensation as a county officer. By section 39 of the act
relating to fees and salaries, the supervisor, as a member of the board of
supervisors, is entitled to receive two dollars and fifty cents per day "for the
time actually and necessarily engaged in the discharge of his duties as a
member of such board," to be paid out of the county treasury, and mileage
(five cents each way) for necessary travel, "and no other allowance or emolu-
ment whatever." This per diem allowance is not restricted to the time
actually engaged in attendance upon the sessions of the board, but may em-
brace time engaged as a member of a committee, or in the discharge of any
other duty he owes his county as a member of the board entrusted with the
management of its financial affairs. But in looking after the poor he acts as,
a supervisor, and not as a member of the county board.
7. Judicial notice— of township system in a county. This court will
take judicial notice of the fact that a county is acting under the Township
Organization law.
Appeal from the Appellate Court for the Fourth District ; —
heard in that court on writ of error to the Circuit Court of
Madison county; the Hon. William H. Snyder, Judge, pre-
siding.
This was an action of assumpsit, brought by John A.
Bruner, in the Madison circuit court, May 29, 1883, against
the county of Madison. The declaration, after the caption,
is substantially as follows :
"John A. Bruner complains, etc., for that whereas, on, etc.,
at, etc., the defendant was indebted to the plaintiff in the
Bruner v. Madison County. 13
Statement of the case.
sum of $500, for labor and services of the plaintiff, by him
before that time bestowed in and about the business of the
defendant, at its request. And the plaintiff avers that he
was supervisor of Alton township, duly elected and qualified
according to law, and it was his duty by law to take care of
the paupers in and for said township ; and plaintiff avers
that in the discharge of such duty he performed the services
aforesaid, by means whereof the defendant became indebted
for such labor and service. The plaintiff avers that it is the
duty of said defendant, by law, to take the care and custody
of said paupers, and the plaintiff avers that a tax is levied
and collected by law to provide for the care, custody and
support of said paupers, and that said pauper fund, so raised
by law, is paid into the county treasury of Madison county,
and is under the control and authority of the said defendant ;
and the plaintiff avers that no tax is levied or collected by
Alton township for the support of its paupers, or to pay any
salary to supervisor for the care and custody of such paupers.
And the said defendant, being so indebted, in consideration
thereof, then and there promised said plaintiff to pay said
sum of money on request, " etc.
To this declaration the defendant interposed a general de-
murrer, which the court overruled, and the defendant abiding
by its demurrer, the court assessed the plaintiff's damages
at $510, and rendered judgment for that sum. On writ of
error, the Appellate Court for the Fourth District reversed
the judgment of the circuit court without remanding the
cause, and gave final judgment against the plaintiff. The
Appellate Court certified, under the statute, that the case
involves a question of law of such importance, on account
of collateral interests, as that it should be passed upon by
the Supreme Court, and that "said question is, whether the
declaration filed by the plaintiff disclosed a sufficient cause
of action, " and that the Appellate Court was of opinion that
no sufficient cause of action was disclosed, — and thereupon
14: Bruner v. Madison County.
Brief for the Appellant.
the plaintiff brings the case to this court by appeal, and
assigns for error the ruling of the Appellate Court in revers-
ing the judgment of the circuit court and refusing to remand
the cause.
Mr. A. W. Hope, for the appellant :
Section 14, chapter 107, of the Eevised Statutes, entitled
"Paupers," makes counties, except those in which the poor
are supported by the towns, liable for the support of the
poor; and section 18 provides that "in counties under town-
ship organization, the supervisors of the respective towns
shall be ex officio overseers of the poor of their towns." Sec-
tion 25 provides, that in all counties in which the poor are
not supported by the towns, the overseers of the poor of such
towns shall, at each regular session of the county board, etc.,
make a full report of all their actings and doings, etc. And
by section 26 it is provided : "Upon such report being made,
it shall be the duty of the county board to make the proper
appropriations from the county treasury for the payment of
the necessary expenses for the relief and support of the poorv"
What expenses are meant, of such relief and support of
the poor? Who affords relief? The supervisor, — ex officio
overseer of the poor. Who must pay for such relief? The
county board must make an appropriation from the county
treasury. By section 28 of the same chapter the county
board is authorized to levy and collect a tax for the support
of the poor.
The supervisor is the agent of the county, and under the
control of the county board, and his time and services in pro-
viding the relief or support of the poor are a part of the ex-
pense for which the board is bound to make an appropriation
to pay. The care and support of the poor in Madison county
is a county and not a town burden, which is admitted by
the demurrer.
Bruner v. Madison County. 15
Brief for the Appellee. Opinion of the Court.
Mr. J. H. Yager, for the appellee :
Section 39, chapter 53, of the Kevised Statutes, entitled
"Fees and Salaries," provides that a member of the board
of supervisors shall receive two dollars and fifty cents per day
for the time actually and necessarily engaged in the discharge
of his duties as a member of such board, and mileage, — no
other compensation whatever.
The first clause of section 130, of article 4, chapter 139,
entitled "Township Organization," provides that "the town
clerk and supervisor shall receive for their services two dollars
and fifty cents per day when attending to town business out
of town," and one dollar and fifty cents for town business in
their town. See, also, section 36 of act relating to fees and
salaries.
Section 125, chapter 139, is as follows: "The following
shall be deemed town charges: 1. The compensation of
town officers for services rendered their respective towns,"
etc. The services sued for properly come within the scope of
this clause.
The supervisor, in his character of overseer of the poor, is
never a county but always a town officer, and if entitled to
compensation, must look to his town.
Mr. Justice Dickey delivered the opinion of the Court :
By section 1 of "An act to restore uniformity in* the taxa-
tion of real and personal property, for all purposes, in the
several counties and cities in this State," passed in 1872, it
was provided that all laws requiring any city to support and
provide for its paupers, or assume liabilities or perform duties
required of counties by the general laws of the State, were
repealed. This enactment has been held to apply to incor-
porated towns as well as cities. {Burke v. Monroe County,
77 111. 610.) It is conceded that the support of paupers in
Madison county is a county and not a town charge, and this
16 Bruner v. Madison County.
Opinion of the Court.
court will take judicial notice that such county is acting
under the Township Organization law.
This record, and the discussion of counsel, involve but two
principal questions, viz : First, is the appellant, as supervisor
and ex officio overseer of the poor, entitled by law to any com-
pensation for services by him rendered in looking after the
paupers in his town ; and second, if so, is the county liable
to him for such services.
It is doubtless true that compensation for official services
rendered in behalf of the State, or for any public corporation,
must rest upon statutory enactment or contract. Various
instances may be referred to, where duties, even new ones,
have been imposed upon officers without any provision for
remuneration being made. School directors are required to
perform services and discharge important duties without any
salary or other pay. It must be conceded that unless some
provision is made by law for the compensation of overseers
of the poor, from the county treasury, this action can not be
sustained, and the judgment of the Appellate Court must be
affirmed.
Under the laws now in force in this State, two distinct
systems for the support of the poor are provided for, — one by
the county at large, and the other by the several towns com-
posing the county. The first imposes all the costs and ex-
penses attending the care and support of paupers upon the
county, as a county charge or burden, while the other places
the entire charge and burden upon the several towns. In the
one the supervisor, as overseer of the poor in his town, is
required to report his action to the county board, and in the
other to the town auditors. In the first he is required to act
subject to such restrictions and regulations as may be pre-
scribed by the county board, while under the system of town
support he is subject to restrictions and regulations of his
town. By section 26 of the Pauper act, the county board,
upon the filing of the* overseer's report, is required to make
Bruner v. Madison County. IT
Opinion of the Court.
the proper appropriations for the payment of the necessary-
expenses attendant upon the relief and support of the poor.
The time and services of some person in looking after the
poor, investigating claims for relief or support, and taking
the proper steps to grant aid, would seem to be necessary
expenses "of such relief and support," and they are a proper
county charge, if the law gives such person any compensa-
tion at all. By section 27, the town auditors, on such report
to them, are required to audit all accounts, and "order pay-
ment of such expenses from the town treasury." Under
either system, expenses incurred by the overseer of the poor
in removing a pauper or poor family to the poor-house, or
returning a pauper to his home, would seem to be a proper
charge against the county or town, whichever is liable for the
care and support of the poor ; and the same may be said in
respect to the officer's remuneration for his time and services,
if he is entitled to recover any.
The supervisor, though elected as a town officer, is also a
county officer, as a member of the county board. (Sec. 22,
chap. 34.) By section 25, of chapter 34, the county board
is invested with power to "manage the county funds and
county business, except as otherwise specifically provided."
Section 36, of chapter 53, relating to fees and salaries, pro-
vides that "the following named town officers shall be en-
titled to compensation at the following rates for each day
necessarily devoted by them to the services of the town in the
duties of their respective offices : The town clerk, supervisor
and. overseer of the poor shall receive for their services two
dollars per day when attending to town business out of town ;
one dollar for town business in their town." It is evident
that this compensation is to be paid by the town, and if the
services of appellant in looking after the poor in his town,
and reporting his acts to the county board, were "services of
the town," or related to "town business," it would seem clear
that he would be entitled to the compensation named in the
2—111 III.
18 Bruner v. Madison County.
Opinion of the Court.
statute referred to. If the support of the poor were a charge
upon the towns of Madison county, then appellant should be
regarded as engaged in "town business/' and his services as
done for his town, and in such case he would be entitled to
have audited in his favor, by the board of town auditors, one
dollar for each day engaged in the town, and two dollars
while engaged in the service of the town beyond its limits.
But we have seen that the burden of looking after and sup-
porting paupers in the county of Madison is not a town but
a county charge, and his town is not liable to compensate
him for services rendered to the county in relation to affairs
made by law "county business."
It is suggested that if a supervisor, as overseer of the poor,
is entitled to compensation by law in looking after paupers
and poor persons in a county in which the system of town
support prevails, he should be entitled to the same from the
county where it is responsible for the expense of caring for
and supporting the poor, and that it can hardly be supposed
that the legislature intended to make a distinction in this
regard ; that if it has provided for compensation from the
smaller body for services rendered the same, it would not
intentionally provide none for precisely the same services
performed for the larger body, and that it is unreasonable to
conclude that the legislature has required a supervisor to
bestow his time and services in caring for the poor, in a
town of many thousand inhabitants, for no remuneration
whatever. There is force in these suggestions, but can the
courts properly supply defects in legislation? Section 39 of
the act relating to fees and salaries, provides that a member
of the board of supervisors shall receive two dollars and fifty
cents per day "for the time actually and necessarily engaged
in the discharge of his duties as a member of such board of
supervisors, to be paid on the order of the board out of the
county treasury, and mileage (five cents each way) for neces-
sary travel, and no other allowance or emolument whatever. "
Locke et al. v. Davison et al. 19
Syllabus.
The language here used does not necessarily, or even by im-
plication, restrict this per diem allowance to the time actually
engaged in attendance upon the sessions of the board. It
may embrace time engaged as a member of a committee, or
in the discharge of any other duty he owes his county as a
member of the board entrusted with the management of its
financial affairs. But in taking charge of the poor of his
town he does not perform services as a member of the board,
or act as such. The law imposes this duty upon him as a
supervisor, and not as a member of the county board. A
supervisor in a county under township organization, where
the care of the poor is upon the county, while engaged, as an
overseer of the poor, in looking after and providing for relief
or support of the poor of his town, is not entitled by law to
any specific compensation from the county.
Upon a consideration of the whole case we feel compelled
to affirm the judgment of the Appellate Court.
Judgment affirmed.
Morris R. Locke et al.
v.
William Davison et al.
Filed at Springfield September 27, 1884.
1. County — power to fund indebtedness or issue interest bearing bonds
to take up county orders. A county board has no authority of law to fund
county indebtedness, or issue interest bearing bonds for money with which
to take up outstanding county orders and obligations, without a vote of a
majority of the legal voters of the county; and with such vote they are limited
to eight per cent interest on such bonds.
2. Same — general powers of county board — statute construed. The
statute which provides that the county boards of the several counties shall
have power "to manage the county funds and county business, except as
otherwise specifically provided," does not give such boards an absolute and
unlimited power of management of county funds, when there is an absence
20 Locke et at. v. Davison et al.
Brief for the Plaintiffs in Error.
of any specific provision of law to the contrary. It means no more than a
power to manage the county funds and county business according to law.
3. Same — injunction, to prevent payment of interest on bonds illegally
issued. Where a county board issued bonds, bearing ten per cent interest,
with which to liquidate outstanding county orders, the payment of interest
on the same was enjoined by the circuit court at the suit of the tax-payers
of the county, and this court affirmed the decree.
4. Statute — specifying one mode, as excluding any other. Where a
statute points out a particular course to be pursued to effect a particular
purpose, no other course can lawfully be pursued.
5. Chancery — affirmative relief not on answer. On bill filed by tax-
payers of a county to restrain the county board from paying certain interest
bearing bonds illegally issued by that body, for money with which to liquidate
outstanding county orders, the circuit court enjoined the county board from
paying interest on such bonds, but failed to decree that the principal sum
should be returned, and this failure was assigned for error: Held, that the
decree was not erroneous in this respect, as there was no cross -bill to warrant
the giving of such affirmative relief to the bondholders.
6. Same — imposing equitable terms in granting relief. On bill by tax-
payers to restrain a county board from misappropriating county funds to the
payment of interest upon bonds issued by such board in violation of the
statute, in granting the relief sought it was held, that the rule, he who seeks
equity must do equity, did not apply to the complainants, as they did not owe
the debt, and that there was no error in not requiring them to pay the prin-
cipal, with legal interest, as a condition to granting the relief sought. Had
the county sought to be relieved from the payment of the stipulated interest,
the rule might have been applied.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — heard in that court on appeal from the Circuit Court
of Jersey county ; the Hon. Lyman Lacey, Judge, presiding.
Messrs. Brown, Kirby & Kusseld, for the plaintiffs in error :
The court erred in refusing to dissolve the injunction.
The bonds were good as to the principal sum, even if illegal
as to the interest. When a good thing and a bad thing are
put together in one grant, it may stand as to the thing which
is good. Addison on Contracts, (Morgan's ed.) sec. 299;
Bank v. Chilicothe, 7 Ohio, 36.
The cases of County of Hardin v. McFarlan, 82 111. 138,
and Hall v. Jackson County, 95 id. 352, were based upon the
Locke et al. v. Davison et al. 21
Brief for the Defendants in Error.
statute in force at the time the bonds were issued. (Laws of
1863, p. 41.) This case is distinguished from those. By
the act approved April 14, 1875, counties were empowered to
fund their indebtedness.
The right to demand interest is placed on the ground that
the county board made its contract to pay it, and obtained
the money on the faith of such agreement. The court should
have required the county to do equity, by ordering the pay-
ment of the money loaned to it, with six per cent interest.
(Mapps v. SJiarpe dc Co. 32 111. 13 ; Ferguson v. Sutphen, 3
Gilm. 547.) But the bill should have been dismissed, as the
board had, under the then existing statutes, power to make
the contract it did. Kev. Stat. 1874, chap. 34, sees. 24, 25.
Prior to the acts referred to, this court has held that mu-
nicipal corporations could contract to pay interest without
express statutory authority. City of Galena v. Corinth, 48
111. 423; Aurora v. Paddock, 80 id. 263; West v. Madison
County, 82 id. 205 ; Madison County v. Bartlett, 1 Scam. 67 ;
Pike County v. Horsford, 11 111. 170 ; Jackson County v. Rend-
leman, 100 id. 379.
Messrs. Hamilton & Slaten, and Mr. A. A. Goodrich, for
the defendants in error :
A corporate body can not do any act, or make any contract,
or incur any liability, not authorized by the statute or charter
by which it is created. Cook County v. McCrea, 93 111. 236 ;
City of Champaign v. Harmon, 98 id. 491 ; Schott v. People,
89 id. 195; People v. Village of Crotty, 93 id. 180.
It is contended that the board has the power it exercised,
under the Kevised Statutes of 1874, (chap. 34, sec. 25,) "to
manage the county funds and county business, except as
otherwise provided by law." In reply, we refer to Cook
County v. McCrea, 93 111. 236.
The question of the power of the board to issue interest
bearing orders, is settled adversely to plaintiffs in error in
22 Locke et al. v. Davison et al.
Opinion of the Court.
County of Hardin v. McFarlan, 82 111. 138. See, also, Laws
of 1877, p. 145.
If the orders were otherwise legal, which we deny, they are
usurious, and a fraud upon the tax-payers, and for that reason
are void as to the interest, (Payne v. Newcomb, 100 111. 611,)
and the plaintiffs in error would be only entitled to recover for
the amount of principal due, after application of the interest
received, in liquidation of the principal of the indebtedness.
Driscoll v. Tannock, 76 111. 154; Haivhe v. Snydaker, 86 id.
197; Reinback v. Crabtree, 77 id. 183; Mitchell v. Lyman,
id. 525.
The Supreme Court of this State has held repeatedly that
municipal corporations, such as counties, are not required to
pay interest, except upon an express agreement to pay such
interest. South Park Comrs. v. Dunlevy, 91 111. 49; Madison
County v. Bartlett, 1 Scam. 67 ; County of Pike v. Horsford,
11 111. 170; Hall v. Jackson County, 95 id. 352/
Defendants in error were under no equitable obligation to
do equity, as the debt the payment of which they sought to
enjoin was not theirs.
Mr. Justice Sheldon delivered the opinion of the Court :
In the spring and summer of 1877, by reason of floods and
other extraordinary occurrences, the expenses of the county
of Jersey, in this State, were more than double the ordinary
expenditures of the county, and in September of that year
the county board found itself without sufficient funds, arising
from the tax levy of 1876, to meet its requirements, and was
compelled to anticipate the levy made in the year 1877, and
collectible in the year 1878. To meet the emergency, the
board applied to James A. and Morris K. Locke, and made
with them an agreement that the latter should furnish the sum
of $8000, for the purpose of liquidating outstanding county
warrants, and the board to pay them ten per cent interest,
Locke et al. v. Davison et al. 23
Opinion of the Court.
semi-annually, and to issue interest bearing orders, payable
September 10, 1878, for the money. The Lockes were to
have $160 for their services in attending to the business, and
to have issued to them eight orders, for $1000 each, due Sep-
tember 10, 1878, and bearing ten per cent interest, payable
semi-annually. In pursuance of the arrangement, the Lockes
purchased and took up, at their face value, orders of the
county, issued at the September term, 1877, of the county
board, for current expenses of the county, to the amount of
$S058.38. In compliance with its contract, the county board
issued nine county orders to the Lockes, in lieu of those
taken up under the contract, — one for $58.38, and eight for
the sum of $1000 each, bearing ten per cent interest, pay-
able semi-annually, and each due September 10, 1878. The
small order was paid, and at the March term, 1878, the
county board issued a county order for $402.91, in payment
of interest due at that time to the Lockes, which order was
paid and cancelled by the 'county on April 29, 1878. On
May 6, 1878, Davison, and other tax-payers of the county,
filed their bill in equity, to enjoin the county authorities from
paying these county orders issued to the Lockes, charging
that the orders were issued without authority of law, and
were void. Upon hearing, the circuit court found that the
issuing of such interest bearing orders was without authority
of law, so far as the agreement to pay interest is concerned,
and by decree enjoined the payment of any interest on the
orders. On appeal to the Appellate Court for the Third Dis-
trict, the decree was affirmed, and the Lockes sued out this
writ of error.
We regard the decision in County of Hardin v. McFarlan,
82 111. 138, as conclusive of this case in respect of the power
of the county board to issue interest bearing bonds or orders
in lieu of ordinary county orders taken up and surrendered.
In that case, county orders had been surrendered by parties
holding them, as in this case, and interest bearing bonds
24 Locke et al. v. Davison et al.
Opinion of the Court.
were issued in lieu thereof, by order of the county board.
It was held, that as there was a statute then in force, (Laws
1863, p. 41,) entitled "An act to enable counties owing debts
to liquidate the same, " that statute provided, fully, the mode,
and the only mode, by which the debts of a county could be
paid, and that the county court had no lawful authority to
issue the interest bearing bonds in that case, and that the
interest money on the bonds, which was sued for, could not
be recovered. In the attempt to distinguish the present case
from that, it is said the statute therein referred to was not
in force at the time the orders here in question were issued,
and that since that decision the powers of counties and county
boards in this respect have been greatly enlarged. But there
were other statutes in force at the time the interest bearing
orders in this case were issued, which provided fully the
means to which the county board could resort to pay any
indebtedness exceeding seventy-five cents on $100 valuation
of property, or to fund the outstanding debt of the county,
viz., sections 27 and 28, chapter 34, of the Eevised Statutes
of 1874, and the act approved and in force April 27, 1877.
(Laws 1877, p. 158.) This statute of 1877 provides, that in
all cases where any county has issued any bonds or other
evidences of indebtedness for money, or has contracted debts
which are the binding, subsisting, legal obligations of such
county, and the same remain outstanding and unpaid, bonds
may be issued to fund such indebtedness, upon a vote of a
majority of the legal voters of such county; and that statute
limits the rate of interest on bonds issued to liquidate out-
standing indebtedness, to eight per cent per annum. The
principle applied in the former case was, that where a statute
points out a particular course to be pursued to effect a par-
ticular purpose, no other course can be lawfully pursued.
That principle, we think, applies with even stronger force
under these statutes, which were in force when these interest
bearing orders were issued, than under the statute of 1863,
* Locke et at. v. Davison et al. 25
Opinion of the Court.
in force at the time of the issuing of the bonds in the case of
County of Hardin v. McFarlan.
The enlarged powers upon the subject, referred to as having
been given to counties and county boards since the decisiqn
in that case, are : "Each county shall have power * * *
Third, to make all contracts, and do all other acts in relation
to the property and concerns of the county, necessary to the
exercise of its corporate powers." "The county boards of
the several counties shall have power * * * Second, to
manage the county funds and county business, except as
otherwise specifically provided." (Rev. Stat. 1874, chap. 34,
sees. 24, 25.) This last provision came under the considera-
tion of this court in Cook County v. McCrea, 93 111. 236,
where we said in regard to it: "This can not be understood
to give to county boards the absolute and unlimited power
of management of county funds, where there is the absence
of any specific provision of law to the contrary. It hardly
means more, we think, than a power to manage the county
funds and county business according to law. "
We find nothing in these subsequent supposed enlarge-
ments of the powers of the county board, or any change of
law, which should cause a variance from the decision in the
McFarlan case, or interfere in the least with its applying
fully to and governing the present case, under the law in
force now and at the time of issuing these interest bearing
orders. We do not perceive that it makes any difference, as
is contended, that there had been a previous contract for the
furnishing of the money for the purpose, and that it was in
pursuance of such antecedent contract that the money was
furnished to take up common county orders, and interest
bearing orders issued therefor. Whether with or without
any contract beforehand, the transaction was one of funding
ordinary county orders not bearing interest, by issuing inter-
est bearing orders therefor, which we hold the county board
had no authority to do except upon a vote of the majority of
26 Locke et al. v. Davison et al.
Opinion of the Court.
the legal voters of the county, — and even then the interest
could not be more than eight per cent, when here it is made
ten per cent, and $160 paid additional.
It is urged that the decree is erroneous in not requiring
that the principal sum should be returned. There was no
cross-bill filed to warrant the giving of such affirmative relief.
The relief asked by the complainants was granted but in part,
restraining payment only of any interest.
But it is insisted that if the court saw fit to enjoin the
payment of any interest, it was inequitable to deny plaintiffs
in error all compensation for the use of their money. The
arrangement made was doubtless, under the evidence, a bene-
ficial one for the county, and it would be equitable that the
plaintiffs in error should be allowed lawful interest upon
the money they advanced ; and if this were a case (as, if the
county were the complainant,) where the rule could be ap-
plied that he who seeks equity must do equity, and relief
might be granted only upon the condition of complainant
doing equity, we would think the relief granted here should
only be upon the equitable terms of complainant paying law-
ful interest, in analogy to the rule in that respect which pre-
vails when one seeks relief in equity against an unlawful,
usurious contract. But the county here, — the debtor, — is
not complaining. The county board is content, and willing
to perform its contract. The complainants are only tax-
payers, and are seeking relief both against the county author-
ities and the creditors, to prevent misappropriation by the
former of public moneys for the benefit of the latter. As
the complainants — mere tax-payers — do not owe the money
themselves, it would not be a just condition to impose upon
them that they should pay the lawful interest on the money.
Belief upon such a condition would be none at all. It would
be better to submit to the increase of tax which would be
occasioned by the payment of the orders in full, as contracted
to be paid. It being impracticable, then, in such a case as
Holmes v. City of Mattoon. 27
i
Syllabus.
this, to apply the equitable condition of relief, — of payment
of lawful interest, — we do not see that there was error in the
decree in omitting it.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
Harry E. Holmes
v.
The City of Mattoon.
Filed at Springfield September 27, 1884.
1. Constitutional law — law exempting municipal corporations from
giving appeal bond. The act of 1879, allowing municipal corporations to
appeal without giving an appeal bond, as in other cases, is not unconstitu-
tional, as being either a local law or special legislation.
2. State — rights of, in respect to suits — liability for costs. The State
can not be sued without its consent, nor can its power to sue and prosecute
suits in all their various stages be limited or controlled, except by its sover-
eign power, properly exercised. It has the undoubted right to prosecute and
defend all suits and maintain all legal proceedings, without cost or other
restrictions.
3. Municipal cokporations — as State instrumentalities, may have
same exemptions as the State. Public municipalities, such as counties,
cities, villages, towns and school districts, and all officers suing for or de-
fending the rights of the State, or acting for or instead of the State in respect
of public. rights, being only instrumentalities of the State, may constitution-
ally be authorized to sue without the payment of costs, or conforming to all
the requirements imposed by the law upon natural persons or corporations
formed for private gain.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — heard in that court on appeal from the County Court
of Coles county; the Hon. Charles Bennett, Judge, pre-
siding.
28 Holmes v. City of Mattoon.
Briefs of Counsel. Opinion of the Court.
Messrs. Craig & Craig, for the plaintiff in error, contended
that the act of the legislature exempting municipalities from
giving a bond on appeal was in violation of the constitution,
prohibiting local and special legislation, — citing Const, of
1870, art. 1, sec. 22; Bull v. Conroe, 13 Wis. 266; Durkee
v. Janesville, 28 id. 471; 2 Yerg. 554; Tate v. Bell, 4 Yerg.
208; Jones v. Perry, 10 id. 77; Mayor v. Dearmon, 2 Sneed,
122 ; Howe v. Railroad Co. 1 Coldw. 78 ; Vansant v. Wad-
dell, 2 Yerg. 258; Officers v. Young, 5 id. 320; BuscJiy. New-
berg, 10 N. Y. 375; Holden v. James, 11 Mass.. 396; Hill v.
Town of Sunderland, 3 Yt. 507.
Mr. T. L. McGrath, for the defendant in error, contended
that the law was valid, as the city, in prosecuting under the
ordinance, is not acting for private gain, but for the public
good.
Mr. Justice Walker delivered the opinion of the Court :
In this case there was an appeal by the city to the Appel-
late Court for the Third District. In that court a motion
was made to dismiss the case, because the city had, under
the act of 1879, (Sess. Laws, 222,) appealed without giving
bond. It is now urged that section 71, as amended by that
act, is unconstitutional, because it relieves all municipal cor-
porations from the law requiring appellants and plaintiffs in
error, on obtaining a supersedeas, from giving bond.
It is urged that section is violative of the constitution,
because it is special or local legislation. Nothing could be
more manifest than it is not local, because its operation ex-
tends to every portion of the State. This is too manifest to
require the slightest notice. Had not cases been referred to
that to some extent favor the position of appellant that it is
special legislation to allow such appeals, we should have been
inclined to hold that the proposition could not be raised to
Holmes v. City of Mattoon. 29
Opinion of the Court.
the dignity of a constitutional question, and have dismissed
it without consideration. We apprehend that no one will or
can seriously contend that the State, or the sovereign body
exercising the functions of a State, can be sued without its
consent and permission ; nor can its power to sue and prose-
cute" suits in all of their various stages be limited or con-
trolled, except by its sovereign power, properly exercised ; nor
can the State, representing sovereignty, be rendered liable
for costs or damages in prosecuting or defending suits or
legal proceedings, unless it so expressly declares by consti-
tutional provision or legislative enactment. The State, what-
ever its form or its powers, has the unquestioned right, as
representing the sovereign power, to prosecute and defend
all suits and maintain all legal proceedings without cost or
other restrictions, unless imposed by fundamental law, or
self-imposed by legislative enactment. These are axiomatic
principles, always admitted and never controverted. From
and before the organization of the State it has ever prosecuted
and defended suits, criminal and civil, without liability for
costs, damages or forfeitures, and has prosecuted writs of
error without bonds or any restrictions whatever, — and it is
from the fact that sovereign power is not liable to be sued or
put to expense in the assertion of its rights, and enforcing the
laws for the protection of the governed against violence, wrong
and oppression, and to protect them in the enjoyment of their
rights of life, liberty and general security. It is believed that
in no government, in ancient or modern times, has it been
required to give bond for the payment of the costs of litiga-
tion, before bringing suit, or an appeal, or on error. Such a
proposition would be unheard of in the history of government,
and no one having the slightest knowledge of the principles
of government will contend that any such restriction exists.
This being true of the State government, it is necessarily true
of all its officers, agents and instrumentalities, while employed
in seeking the rights of the government in the courts of jus-
30 Holmes v. City of Mattoon.
Opinion of the Court.
tice. Hence, officers suing for or defending the rights of the
State are acting for and in the stead of the State, and to that
extent not only may but should be permitted to do so on the
same terms and for the same reasons the State is permitted
to sue for or defend its rights.
Again, municipalities, such as counties, cities, villages,
towns, school districts, and, in the language of the act,
"all other municipal corporations," and the corporations of
all charitable, educational, penal or reformatory institutions
under the patronage and control of the State, and all public
officers when suing or defending in their official capacity for
the benefit of the public, are the instruments of the State to
carry out its powers for the public welfare, and in exercising
their powers and enforcing public rights they act as agents,
and may have extended to them the same exemptions in suits
as belong to the State. Municipal bodies act for the State,
and to the extent authorized exercise the powers of govern-
ment, and when so exercising such powers they may, when
so authorized, do so without conforming to all of the require-
ments imposed by the practice on natural, or artificial persons
created for the purposes of business or gain. The construc-
tion contended for would compel the State itself to give bond
on appeal, or the granting of a supersedeas, in cases where
the suit was for the benefit of the State and public welfare.
Such a purpose could never have actuated the persons who
framed and adopted the constitution.
But the question is not entirely new in this jurisdiction.
In the case of The People v. Wallace, 70 111. 680, it was in-
sisted that an act which required, as a prerequisite to an
appeal from a judgment for taxes, that the person desiring to
appeal should deposit the amount of the judgment in money
with the treasurer, was unconstitutional ; but the validity of
the act was upheld and enforced. Again, in the case of An-
drews v. Ramsey, 75 111. 598, the validity of the same law was
sustained. It was there said: "While the right of appeal
Holmes v. City of Mattoon. 31
Opinion of the Court.
from the final determination of county courts is conferred by
the constitution, yet it can only be exercised under such con-
ditions as may be imposed by the legislature. The language,
'Appeals and writs of error shall be allowed from the final
determination of county courts, as may be provided by law,'
(Const, sec. 19, art. 6,) is too plain to admit of doubt that it
is purely a question for the legislature to determine how and
upon what terms such appeals shall be granted." It will be
observed that case goes much further than we are required to
go in this case. That law related to and regulated appeals in
cases of judgments for taxes differently from private suits or
other suits by the People ; and inasmuch as it embraced a
class coextensive with the State, the law was held to be gen-
eral, and it was sustained, although persons against whom
judgment for taxes had been rendered, were compelled to
submit to terms and conditions to procure an appeal in such
cases as were not imposed on other persons in perfecting
appeals in a different class of cases. Those cases are clearly
conclusive of this question. The cases referred to by appel-
lant do not announce the doctrine contended for by him.
Were they under our constitution, they, by strained inference,
might be supposed to lend some support to the doctrine ; but
they are under different constitutions, of the provisions of
which we are not informed. We therefore presume they are
correct, and required by their fundamental law ; but if so, it
does not follow that they apply to our organic law.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
32 Coal & Mining Co. v. Coal & Mining Co.
Syllabus.
The St. Louis and Sandoval Coal and Mining Company
v.
The Sandoval Coal and Mining Company.
Filed at Mt. Vernon September 27, 1884.
1. Judgment and decree — jurisdiction — not void for error alone. If
a court has jurisdiction of the parties and subject matter of the controversy,
and the party against whom the judgment or decree is rendered has had either
actual or constructive notice of the pendency of the suit, no mere error can
render the judgment void; but where jurisdiction is wanting, either as to the
subject matter or the parties, the judgment is a nullity.
2. Same — when void, no rights can be based on it. A judgment or decree
in a case where the court fails to acquire jurisdiction of the party against
whom it is rendered, or of the subject matter, being absolutely void, all acts
performed under it are void, and no right can be divested or acquired under
the same.
3. Same — not assailable, collaterally, for errors. Where the court ren-
dering a judgment or decree has jurisdiction both of the subject matter and
of the persons of the parties, a mere error or irregularity can not be taken
advantage of collaterally.
4. Same— jurisdiction over defendant corporation — void service. On a
bill filed to dissolve an insolvent corporation, and for the appointment of a
receiver, the summons against the corporation was served by leaving a copy
thereof with one of the complainants, a director of the defendant corporation:
Held, that the service was void, and gave the court no jurisdiction over the
corporation, and its decree authorizing the receiver to sell the property of the
defendant corporation was a nullity, and might be attacked collaterally.
5. Eeceivee— of corporation — may be appointed before court acquires
jurisdiction over corporation. The court may, on a proper showing, ap-
point a receiver to take charge of the assets of an insolvent corporation, to
save the same from destruction or waste, before acquiring jurisdiction to
adjudicate upon the rights of such corporation. In such case the receiver may
be authorized to hold the property until the rights of the parties are deter-
mined. Placing property in the hands of a receiver is in the nature, of an
equitable attachment, whereby the court, through its officer, acquires the
custody of such property.
6. Same — corporation may sue, by leave of court, after the appointment
of receiver. After a valid decree appointing a receiver for a private corpo-
ration, actions may be brought in its name, by leave of the court making
such appointment, against any one except the receiver, to try the legal title
to property claimed by such corporation.
Coal & Mining Co. v. Coal & Mining Co. 33
Brief for the Plaintiff in Error.
7. Same — legal title — how vested in. In the absence of any statutory
provision on the subject, real estate can not be vested in the receiver except
by a conveyance to him.
8. Deckee — acts done under void decree not validated by a subsequent
decree. The sale of the property of an insolvent corporation under a decree
in a suit in equity without service on the defendant corporation, is void, and
fails to divest it of its property; and a subsequent decree, rendered after a
reversal of the former one, can not relate back and render the void sale valid.
The latter decree can only sustain a sale made after its rendition and upon
its authority.
9. Cobpoeation — may sue after decree dissolving it. A private cor-
poration, after a decree of dissolution, remains in being for the purpose of
settling up its affairs and having its property applied in the payment of its
debts. The statute continues its corporate existence for two years after its
powers have expired, by limitation or otherwise, for this purpose.
10. Pleading — nul tiel corporation — when proper. After a decree dis-
solving a private corporation and appointing a receiver, leave of court was
given it to bring an action of ejectment to try the title to real estate claimed
and held adversely. The defendant pleaded nul tiel corporation: Held,
that the plea was inapplicable to such a case, and that under it the defendant
could not take advantage of the decree dissolving the corporation.
Writ of Error to the Circuit Court of Marion county ; the
Hon. Amos Watts, Judge, presiding.
Mr. B. Gratz Brown, Mr. Upton M. Young, and Mr. Alex-
ander Young, for the plaintiff in error :
The decree and sale were absolutely void, for the reason
of a want of service of process on the defendant corporation.
St. Louis and Sandoval Coal and Mining Co. v. Edwards, 103
111. 472.
Where there is no service on a minor defendant, and his
appearance is entered by a guardian ad litem, a decree against
the minor is void for want of jurisdiction, and a sale under
such decree passes no title. Chambers v. Jones, 72 111. 275 ;
Grand Tower Mining and Trans. Co. v. Schirmer, 64 id. 106 ;
Haywood v. Collins, 60 id. 328.
A sale under a void judgment divests no title. Chase v.
Dana, 44 111. 262 ; Campbell v. McCahan, 41 id. 45 ; Johnson
v. Baker, 38 id. 98.
3—111 Lll.
34 Coal & Mining Co. v. Coal & Mining Co.
Brief for the Defendant in Error.
A judgment or decree is void unless the court has jurisdic-
tion of the person of the defendant and of the subject matter.
White v. Jones, 38 111. 159; Curtis v. Brown, 29 id. 228; Par-
don v. Dwire, 23 id. 572 ; Mulford v. Stalzenback, 46 id. 306.
The application for permission to sue was properly made.
Kerr on Eeceivers, 167; Degroot v. Jay, 30 Barb. 483.
If a receiver is merely authorized to sell property like a
master, he takes no title. Union Trust Co. v. Weber, 96 111.
346.
A receiver can not sue without express authority from the
court. Screven v. Clark, 48 Ga. 41.
Where a receiver is not authorized, either by statute or by
the order of the court from which he derives his appointment,
to sue in his own name, he can not do so, but must bring the
action in the name of the corporation or party in whom the
right of action was before the appointment of the receiver.
Manlove v. Burger, 38 Ind. 211 ; Y eager v. Wallace, 44 Pa.
St. 294; Boothe v. Clark, 17 How. 331.
Beal estate is vested in the receiver only by a conveyance
to him. Chatauqua Bank v. Risley, 19 N. Y. 369.
It is the settled policy of this State, at least so far as
domestic corporations are concerned, that upon their disso-
lution, however that may be effected, they shall, nevertheless,
be regarded as still existing for the purpose of settling up their
affairs and having their property applied for the payment of
their just debts. Life Association of America v. Fassett, 102
111. 315; Eev. Stat. chap. 32, sees. 10, 25.
A railway corporation is not dissolved by the road going
into the hands of a receiver, but it remains in being, capable
of suing and being sued. People v. Barnett, 91 111. 422.
Mr. H. C. Goodnow, and Mr. M. ScHiEFFER, for the defend-
ant in error, contended that if the court had jurisdiction to
appoint a receiver, its proceedings, even if erroneous, can not
be called in question collaterally. High on Eeceivers, sec. 346.
Coal & Mining Co. v. Coal & Mining Co. 35
Opinion of the Court.
A receiver is an officer of the court, acting under its orders
and directions. He has no other powers, in the first place,
than those conferred upon him by the order appointing him.
His discretionary powers are very limited. His duties are
prescribed by the court. Whenever it is for the interest of
the parties concerned, the court will order the sale of the
property, pending litigation. High on Eeceivers, sec. 192;
Hooper v. Winston, 24 111. 353 ; Union Trust Co. v. Weber, 96
id. 346 ; Wincock v. Turpin, id. 135 ; Otis v. Gross, id. 612.
It is sufficient for a purchaser of real estate sold by a
receiver, to see, first, that there was a suit in court in which
the court appointed a receiver ; second, that the receiver was
authorized to sell ; third, that he sold in pursuance of such
authority ; fourth, that the sale was confirmed by the court ;
and fifth, that the deed describes the property sold. High
on Eeceivers, sec. 636.
By the decree in February, 1883, and even by the original
order appointing a receiver, the corporation was dissolved and
incapacitated to sue. Potter on Corporations, sees. 718, 719.
The plaintiff can not maintain this action, first, because
the plea of mil tiel corporation is sustained ; second, because
if, as plaintiff claims, the sale by the receiver is void, then
the property in controversy is still in the custody of the court,
and in the rightful possession of the receiver or his lessee ;
and third, because the defendant is the legal owner, and in
the rightful possession of the property, by virtue of its pur-
chase from the grantee of the receiver, who was ordered to sell
the same by the court having legal power to make such order.
Mr. Justice Dickey delivered the opinion of the Court :
This was an action of ejectment, brought by the St. Louis
and Sandoval Coal and Mining Company, against the San-
doval Coal and Mining Company, to recover the possession
of a coal mine and its appurtenances, situated at Sandoval,
Marion county, Illinois, the declaration alleging title in fee
36 Coal & Mining Co. v. Coal & Mining Co.
Opinion of the Court.
in the plaintiff. The defendant pleaded the general issue,
and a special plea "that the plaintiff was not at the com-
mencement of said suit, and is not now, a corporation, as by
the said writ and declaration is above supposed." The par-
ties waived a jury, and the cause was tried by the court.
The finding was for the defendant, and overruling a motion
for a new trial, the court rendered judgment against the
plaintiff, and the plaintiff appeals to this court.
There is no question but that the title to the property
involved in this action was in the plaintiff at- the time of the
sale of the same by the receiver, and still is, unless that sale,
and the decree in the cause in which the sale was made,
passed the title to the purchaser under whom the defendant
claims. The plaintiff company was, in December, 1877, duly
incorporated under the laws of this State for the purpose of
mining coal near Sandoval, Illinois, the capital stock to be
$50,000. The corporation procured conveyances in fee of
the property in controversy, and received by donation the
mining right to considerable land in the vicinity, upon con-
dition that the company would, within two years, sink a shaft
to a paying vein of coal, and operate a coal mine there. On
June 27, 1878, the corporation having incurred an indebt-
edness to one Frank Seymour, under a contract for sinking
a shaft, and being insolvent, as was alleged, Francis H.
Edwards, Isaac Main, and others, stockholders, and said
Seymour, as a creditor, filed their bill in the Marion circuit
court, against said company (the plaintiff herein) and all
the stockholders and officers thereof who were not complain-
ants, charging the above facts, with others, — such as, a waste
of assets, by fraudulently giving to one Townsend $10,000
in stock for nothing, — and praying for the appointment of a
receiver, to take and sell the property of the company and
pay its debts. Summons was served on the company by
delivering a copy of the same to said Isaac Main, one of its
directors, the other officers being non-residents, as was alleged
Coal & Mining Co. v. Coal & Mining Co. 37
Opinion of the Court.
in the bill. The return to the summons showed that neither
the president, clerk, secretary, superintendent, general agent,
cashier nor principal of the company was found. This was
the only service upon the corporation. Other defendants
were all, either actually or constructively, served with process,
or by publication. No one appearing for the corporation, a
decree pro confesso was entered against it, as well as the other
defendants not answering. The court found the allegations
of the bill to be substantially true, and entered a decree dis-
solving the corporation, and appointed George W. Herod
receiver, to take possession of and dispose of the property of
the company, make conveyances to purchasers, and pay the
debts. The receiver took possession and sold all of the prop-
erty and mining rights to said Isaac Main, for $200, and
made him a deed, which sale was reported to and approved
by the court, and Main afterwards sold and conveyed the
property to the defendant company in this action. On writ
of error the decree was reversed in all things except as to
the appointment of the receiver, and the cause remanded.
(St. Louis and Sandoval Coal and Mining Co. v. Edwards,
103 111. 472.) When the case came again to the circuit court,
plaintiff in error answered the bill. The cause was again
heard at the February term, 18S3, of the circuit court, and
a decree was again entered dissolving the corporation and
confirming the appointment of the receiver, but no other sale
of the property was made under this decree. At the August
term, 1882, leave was given to the plaintiff to sue for said
property. Demand was made for possession, and a suit in
ejectment was brought, which was dismissed at the February
term, 1883, and this action was brought to the August term
without any further leave, and after the decree dissolving
the corporation.
The validity of the receiver's conveyance of the property
made under the decree of the circuit court appointing him,
depends upon the fact whether that court had acquired juris-
38 Coal & Mining Co. v. Coal & Mining Co.
Opinion of the Court.
diction of the defendant corporation, for the law is well settled
that if the court has jurisdiction of the parties and subject
matter of the controversy, and the party against whom the
judgment or decree is rendered has had either actual or con-
structive notice of the pendency of the suit, no error can
render the judgment void; but when jurisdiction is wanting,
either as to the subject matter or parties, the judgment is a
nullity. . (Mulford v. Stalzenback, 46 111. 306.) The judgment
or decree in such a case being void, all acts performed under
it are void, and no right can be divested by it or acquired
under the same. Campbell v. McCahan, 41 111. 45 ; Johnson
v. Baker, 38 id. 98 ; Chambers v. Jones, 72 id. 275 ; Grand
Tower Mining and Trans. Co. v. Schirmer, 64 id. 106 ; Hay-
wood v. Collins, 60 id. 328 ; Chase v. Dana, 44 id. 262. As
a general rule a judgment is void unless the court has juris-
diction of the defendant and of the subject matter of the suit.
White v. Jones, 38 111. 159; Curtiss v. Btown, 29 id. 229;
Pardon v. Dwire, 23 id. 572. But when the court has juris-
diction both of the subject matter and of the persons of the
parties, a mere error or irregularity can not be taken advan-
tage of collaterally. Adams v. Larimore, 51 Mo. 130 ; Wenner
v. Thornton, 98 111. 156; Harris v. Lester, 80 id. 307; Wing
v. Dodge, id. 564; Hernandez v. Drake, 81 id. 34.
The case of St. Louis and Sandoval Coal and Mining Co. v.
Edwards, supra, is decisive of this. In that case it was held
that the service of the summons upon the defendant corpo-
ration by leaving a copy thereof with one of the complainants
in the suit, although a director in such corporation, was void,
and gave the court no jurisdiction over the corporation ; and
we adhere to the ruling in that case. The court having no
jurisdiction of the party whose property was sought to be
subjected to sale, its decree authorizing its sale is a nullity,
and may be attacked collaterally.
It is urged that the court had at least legal power to make
the order appointing the receiver, and authorize him to take
Coal & Mining Co. v. Coal & Mining Co. 39
Opinion of the Court.
possession of and sell the property of the corporation, and
this court has so held in the case last above mentioned ; and
it is claimed that if the facts alleged in the bill were suffi-
cient to give the court jurisdiction of the subject matter, and
authorized it to appoint a receiver, its proceedings in making
such appointment, even if erroneous, can not be called in
question in a collateral action. It is a sufficient answer to
say that the mere power to appoint a receiver pendente lite,
to preserve property, does not include the power to authorize
him to sell and convey real estate. The court may, on a
proper showing, appoint a receiver to take charge of the assets
of an insolvent corporation, and save the same from destruc-
tion or waste, before acquiring jurisdiction to adjudicate upon
the rights of such corporation. In such case the receiver
may be authorized to hold the same until the rights of the
parties are settled and determined. The appointment of a
receiver in such case is in the nature of an equitable attach-
ment, whereby the court acquires, through its officer, the
custody of property or assets, to be retained until it has
acquired jurisdiction. The plaintiff in error, at the time of
the sale, was not a party to the suit. The sale as against it
was void. It could not be divested of its title by proceedings
to which it was not a party. The subsequent decree could
not relate back to and render valid that which was void. It
could only sustain proceedings of sale made after the valid
decree was made, and upon its authority.
After a valid decree appointing a receiver for a private
corporation, actions may be brought in its name, by leave of
the court, against any one except the receiver, to try the legal
title to property. It remains in being for the settling up of
its affairs and having its property applied in the payment
of its debts. (Life Association of America v. Fassett, 102 111.
315.) The statute relating to private corporations continues
their corporate existence for two years after their powers have
expired, by limitation or otherwise, for the purpose of collect-
40 Kratz v. Buck.
Syllabus.
ing their debts and disposing of their property. (Bev. Stat.
chap. 32, sec. 10; Ramsey v. P. M. and M. F. Ins. Co. 55
111. 311.) Real estate is vested in a receiver only by a con-
veyance to him, in the absence of any statutory provision
on the subject. (Chatauqua Bank v. Risley, 19 N. Y. 369.)
The court that appointed the receiver and decreed the disso-
lution of the corporation, having authorized suit in its name
to try the title to land claimed by it, the plea of nul tiel cor-
poration is inapplicable, and under it the defendant can not
take advantage of the decree for the dissolution of the cor-
poration.
It is further claimed, that if the sale and conveyance by
the receiver are void, then the property in controversy is still
in the custody of the court, and in the rightful possession of
the receiver or his lessee. It is sufficient to say that the
defendant does not hold possession of the property for the
receiver, or as his lessee, but as his own. •
It follows from what has been said, that the court erred in
finding against the plaintiff, and the judgment will be reversed.
Judgment reversed.
W. H. Kratz
v.
Eli Buck.
Filed at Springfield September 27, 1884.
1. Forcible detainer — by purchaser at judicial sale — against whom
the action will lie. The remedy of forcible detainer given by statute in favor
of a purchaser at a judicial sale after the time of redemption has expired, is
not restricted to the nominal party against whom the judgment is obtained,
but may be employed against any one who, either before or after the time of
redemption has expired, obtains possession from the defendant in the judg-
ment or decree.
2. Same^-5?/ purchaser at judicial sale — evidence necessary to a re-
covery. While it is true that the question of title can not arise on the trial
Kratz v. Buck. 41
Brief for the Plaintiff in Error.
of an action of forcible detainer, nevertheless a purchaser at a judicial sale
of land can not recover against the judgment debtor, or one succeeding to
his rights and possession, unless he offers in evidence a valid judgment, exe-
cution and sheriff's deed. These are indispensable requisites to a recovery,
for the reason that a sale of the land under a judgment, and a failure to re-
deem, must be shown. In such case the judgment, execution and sheriff's
deed are evidence that the land has been sold and that there has been no
redemption.
3. Where land was sold under execution issued upon a judgment against
A, and B, his wife, and C, after A had placed the title fraudulently in his
wife, and D afterwards recovered a judgment against A alone, and under
execution thereon redeemed from the prior sale and became the purchaser,
and procured a decree finding the title to the land was in A and not B, it was
held, that D, after taking a sheriff's deed, might maintain forcible detainer
for the land against any one succeeding to the possession under A and B, or
either of them, after the first sale.
4. Bedemption — by judgment creditor having a judgment against a
party ivho has fraudulently conveyed. Where land has been sold under
execution against a husband and wife, the legal title of which was in the wife
by a fraudulent convej^ance from her husband, a judgment creditor of the
husband alone may redeem from the prior sale, and have the property sold as
that of the husband, especially after procuring a decree establishing that the
conveyance to the wife was fraudulent and void as to the husband's creditors.
5. Parties in chancery — bill to set aside conveyance as fraudulent —
purchaser at judicial sale. On a creditor's bill to have a conveyance from
a judgment debtor to his wife declared fraudulent, and subject the land to
sale, by the complainant, by redemption from a prior sale under a judgment
against both the husband and wife, the purchasers under the prior sale, whose
rights are conceded and not attacked, are not necessary parties.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — heard in that court on writ of error to the County Court
of Champaign county ; the Hon. J. W. Langley, Judge, pre-
siding.
Mr. Thomas J. Smith, Mr. J. L. Kay, and Mr. A. H. Bryan,
for the plaintiff in error :
Plaintiff in error was the judgment creditor of Patrick
Bates, who was also the debtor of Busey Bros, under their
judgment, under which the sale of the land was made ; and
Patrick Bates, as shown by the decree of the circuit court,
was all the time the owner of the land.
42 Kratz v. Buck.
Brief for the Plaintiff in Ei
Eedemptions are looked upon with favor, to the end that
the debtor's property may pay as many of his debts as possi-
ble. Sweezy v. Chandler, 11 111. 445 ; Keariis v. Lloyd, 52 id.
113; Massey v. Westcott, 40 id. 160; Schuck v. Gerlach, 101
id. 338.
A judgment, even after the sale of real estate, so that it
becomes a lien on the real estate before the time of redemp-
tion expires, entitles the judgment creditor to redeem. (Van-
Rensalear v. Sheriff of Albany, 1 Cow. 501 ; id. 443.) But
by our statute it is not even necessary that the judgment of
the redeeming judgment creditor should be a lien on the land
redeemed, at the time of redemption. Sweezy v. Chandler, 11
111. 445.
Busey Bros, were not necessary parties, as no rights they
had were sought to be impaired. Neither was Edward H.
Bates, as he bought lis pendens, and was bound by the decree.
People v. Ransom, 4 Denio, 145.
The law abhors shifts and connivances for the purpose of
changing possession of land. Jefferson County v. Ferguson,
13 111. 33.
A party purchasing pendente lite, takes subject to the decree,
and is treated as a party to it. (Jackson v. Warren, 32 111.
331 ; Rice v. Brown, 77 id. 549.) Such a purchaser holds
in subservience to the rights of the parties as finally determ-
ined. Atwood v. Mansfield, 59 111. 496 ; Walker v. Douglas,
89 id. 425 ; Burg v. Paxton, 99 id. 288.
No title can be deduced through a judicial sale after it has
been rendered inoperative by a redemption. Parkhurst v.
Race, 100 111. 558.
Where the plaintiff shows a valid judgment execution sale,
and a deed thereunder, he shows a clear case, under the stat-
ute, to recover. Jackson v. Warren, 32 111. 331 ; Johnson v.
Baker, 38 id. 93.
The party holding the legal title must recover in detainer,
and the question as to whether the sale, foreclosure as trustee's
Kratz v. Buck. 43
■Brief for the Defendant in Error. Opinion of the Court.
sale, or redemption, was properly made, can not be heard,
tried, or inquired into in this action. They must go to a court
of equity and have our redemption set aside, but can not
defend against our title and right of possession in this action.
Rice v. Brown, 77 111. 549; Dawson v. Hayden, 67 id. 52;
Graham v. Anderson, 42 id. 517: Bees v. Allen, 5 Gilm. 236.
Mr. J. 0. Cunningham, for the defendant in error:
At the date of the sale under the Busey judgment the title
to the land was in Bridget Bates, and the land was levied
upon as her property, and the right of redemption was in
her. After the year expired it was alone in her judgment
creditors. As Patrick Bates had parted with his title, and
could not redeem, neither could his creditors. Phillips v.
Demoss, 14 111. 410.
The judgment must be a lien on the land before a re-
demption can be had under it. Ex parte Wood, 4 Hil], 542 ;
Ex parte Bank of Monroe, 7 id. 177 ; Phyfe v. Riley, 15 Wend.
248.
Buck not being a party to the judgment, the action does not
lie against him. The cases cited are not like the present.
Mr. Justice Craig delivered the opinion of the Court :
This was an action brought originally before a justice of
the peace of Champaign county, by W. H. Kratz, against
Eli Buck and James Lynch, to recover possession of certain
lands, under the sixth clause of section 2, chapter 57, of the
Bevised Statutes of 1874, entitled "Forcible Entry and De-
tainer," which reads as follows : "When land has been sold
under the judgment or decree of any court in this State, or
by virtue of any sale made under any power of sale in any
mortgage or deed of trust contained, and the party to such
judgment or decree, or to such mortgage or deed of trust, after
the expiration of the time of redemption, when redemption
is allowed by law, refuses or neglects to surrender posses-
44 Kratz v. Buck.
Opinion of the Court.
sion thereof, after demand, in writing, by the person entitled
thereto, or his agent. " A recovery was had by the plaintiff
before the justice, but on appeal to the county court of Cham-
paign county the action was dismissed by plaintiff as to the
defendant Lynch, and on a trial as to the other defendant,
judgment was rendered against the plaintiff. This judgment
was affirmed in the Appellate Court, and the plaintiff sued
out this writ of error.
Two questions are presented by the record : First, under
the facts can the action of forcible detainer be maintained ;
and second, was the land in question sold under a judgment
and acquired by the plaintiff, within the meaning of the stat-
ute which authorizes a recovery against a party to such judg-
ment in this form of action.
On the 25th day of January, 1878, Busey Bros, recovered
a judgment in the circuit court of Champaign county, against
Bridgetf Bates, Patrick Bates and Bernard Lynch, for the
sum of $250. On the 18th day of January, 1882, an alias
execution issued on this judgment, which was levied on the
land in controversy, and the land was duly sold by the sheriff
to the plaintiffs in the execution, on the 20th day of Febru-
ary, 1882, and a certificate of purchase issued to them. It
also appears that W. H. Kratz, the plaintiff in this action, on
the 14th day of August, 1876, recovered a judgment in the
county court of Champaign county, against Patrick Bates,
for the sum of $276.90, and costs of suit. On the 26th day
of August, 1876, an execution was issued on this judgment,
and returned no property found. On the 15th day of May,
1883, a second execution issued upon this judgment, and
was placed in the hands of the sheriff, and at the same time
Kratz placed in the hands of the sheriff an amount of money
necessary to redeem from the sale made on the judgment in
favor of Busey Bros., February 20, 1882. The sheriff filed a
certificate of redemption, levied the execution on the prem-
ises, advertised, and sold the same to Kratz, who bid the
Kratz v. Buck. 45
Opinion of the Court.
amount of redemption money, interest and costs, and as no
other bid was made, a sheriff's deed was made to the pur-
chaser. The plaintiff also put in evidence a bill in equity
filed in the Champaign circuit court by the plaintiff and
others, against Patrick and Bridget Bates, and a decree ren-
dered in said cause, March 28, 1883, from which it appears
that the land in question was originally owned by Patrick
Bates; that on January 13, 1874, he conveyed the land to
Bernard Lynch, and on the same day Lynch conveyed to
Bridget Bates. The decree finds this transaction fraudulent,
and the deeds are set aside, and the land decreed to be in
Patrick Bates. The defendant read in evidence the certifi-
cate of purchase which was issued to Busey Bros., with an
assignment on the back of the same to Edward H. Bates ;
also a sheriff's deed, made on said certificate, to Bates, May
24, 1883. In connection with this evidence Bates testified
that Buck, the defendant, was in possession of the premises
in controversy, as his tenant, since March, 1883; that he
bought the Busey certificate of purchase January 25, 1883,
and his mother, Bridget Bates, let him take possession under
the certificate after he bought. He also testified that he was
the son of Patrick and Bridget Bates.
Under these facts the county court refused to hold as law
the following propositions :
First — That the redemption of the land in controversy in
this suit by the plaintiff, Kratz, from the sale of the same, on
Busey Bros, judgment on execution issued on their judgment,
was a legal redemption from the sale of said land.
Second — That the deed issued by the sheriff to Edward H.
Bates, the assignee of the certificate of purchase issued to
Busey Bros., was and is void, and has no legal effect.
Third — That the plaintiff, Kratz, may maintain this action,
to-wit, forcible detainer, against the defendant, Eli Buck, for
so much of the land as the evidence shows he was in posses-
sion of at the time of the commencement of this suit.
46 Kratz v . Buck.
Opinion of the Court.
It is contended that this action can not be maintained
against Buck, who is in possession under Edward H. Bates,
and the county court so held. As before observed, the stat-
ute provides that the action may be brought against the party
to the judgment under which the lands were sold. Was the
defendant, Buck, a party to the judgment, within the meaning
of the statute ? The construction of this statute authoriziug
a purchaser under a judicial sale, after his purchase had
ripened into a title, to sue for the possession of the land in
an action of forcible detainer, first came before this court in
Jackson v. Warren, 32 111. 331, and it was there held that the
remedy was not restricted to the nominal party against whom
a judgment or decree was rendered, but may be employed
against any one who, even after the time of redemption from
the sale, obtains possession from the defendant in the judg-
ment or decree. It was also held that all parties bound by
the decree might, to that extent, be said to be parties to the
decree, within the meaning of the statute, although not named
in the decree. The same rule was announced in Rice v. Brown,
77 111. 349. Here, at the time of the rendition of the judgment
in favor of Busey Bros., Patrick and Bridget Bates, against
whom the judgment was rendered, were in possession of the
premises, and, so far as appears, they remained in possession
until January 25, 1883, when, as appears from the evidence of
Edward H. Bates, his mother, Bridget Bates, surrendered the
possession to him, and he leased to Buck. It thus appears
that Edward H. Bates and Buck stand in the shoes of Bridget
Bates, who could not, a short time before the time of redemp-
tion expired, turn over the possession to them and defeat the
remedy provided by the statute. Suppose a person against
whom a judgment or decree has been rendered, after a sale
of his land under the judgment or decree, and before redemp-
tion expires, conveys his interest in the land to another, who
enters into possession under such deed, can such person suc-
cessfully resist an action of forcible detainer brought by the
Kratz v. Buck. 47
Opinion of the Court.
purchaser under the judgment or decree after the time of
redemption has expired and a deed has been made to such
purchaser ? We think not ; and yet there is no difference,
in principle, between the case supposed and the one under
consideration. Had Patrick and Bridget Bates remained in
possession until the plaintiff obtained his deed, there is no
question in regard to the right of plaintiff to maintain the
action against them, and in our judgment the defendant who
went in under them, occupies no better position.
We now come to the other question. It is true that the
question of title can not be determined in an action of this
character, but at the same time a plaintiff can not recover,
under the statute, unless he offers in evidence a valid judg-
ment, execution and sheriff's deed. These are indispensable
requisites to a recovery, because a sale of the land under a
judgment, and a failure to redeem, must be established, and
the judgment, execution and sheriff's deed constitute the
evidence that the land has been sold and not redeemed.
(Kepley v. Luke, 106 111. 395.) As has been before observed,
the plaintiff read in evidence a judgment, execution and
sheriff's deed, but the deed was obtained on a sale of the
premises under a redemption made by the plaintiff as a judg-
ment creditor, from a prior sale of the land on execution,
and it is insisted that the redemption was illegal. The sale
redeemed from was in satisfaction of a judgment in favor of
Busey Bros., against Bridget Bates, Patrick Bates and Ber-
nard Lynch, while plaintiff's judgment, under which he re-
deemed, was against Patrick Bates alone, and it is claimed
that the legal title to the land was in Bridget Bates when it
was sold on the Busey judgment, and that it was sold as her
property, and as plaintiff's judgment was not against her, he
could not be regarded as a judgment creditor, within the
meaning of the statute, and had no right to redeem. The
fact that the sheriff may have regarded the property sold as
the property of Bridget Bates, if such is the fact, is a matter
48 Kratz v. Buck.
Opinion of the Court.
of no moment. As the judgment, as well as the execution
upon which the property was sold, was against Bridget and
Patrick Bates, whatever title, legal or equitable, either of
them had in the land, was sold by the sheriff, and if it turned
out that the land sold was the property of Patrick Bates, the
statute conferred the right of redemption on any of his judg-
ment creditors. Before plaintiff redeemed as a judgment
creditor, it was determined by a decree of the circuit court
of Champaign county that Bridget Bates never acquired title
to the land, but on the other hand, the title was in Patrick
Bates. It will not, therefore, be necessary to enter upon a
discussion of the question whether plaintiff, as a judgment
creditor of Patrick Bates, could redeem from a sale of lands
belonging to Bridget Bates, on judgment and execution against
the two.
But it is said that Busey Bros, were not parties to that
decree, and their rights can not be affected by it. It was
not necessary that they should be parties to the decree, for
the reason that it was not attempted by the bill to impair or
in any manner abridge their rights. Whether the land be-
longed to Bridget Bates or Patrick Bates, in no manner con-
cerned Busey Bros., as their judgment was against both of
them, and the sale would pass the title whether it was held
by the one or the other, or both. The decree did not attack
the validity of the sale or call it in question, but by not
making Busey Bros, parties, rather conceded that their sale
was valid, and they or their assignee would be entitled to the
redemption money which remains in the hands of the sheriff,
subject to their order.
In conclusion, we are of opinion that the county court
erred in the construction of the law applicable to the case.
The judgment of the Appellate Court will be reversed, and
the cause remanded.
Judgment reversed.
ZijftM v. The People, 49
Syllabus. Brief for the Plaintiff in Ei
Frank P. Zimm
v.
The People of the State of Illinois.
Filed at Springfield September 27, 1884.
1. Evidence — declarations of a third person in hearing of defendant.
On the trial of a policeman for an assault and battery, it appeared that the
defendant had arrested a boy, -without warrant, for jumping npon a passing
freight train of cars, and that the boy's brother having heard of the arrest,
with a third person came up at a rapid gait to the officer, when an altercation
between the three ensued, the third person acting in concert with the older
brother, during which the officer struck the latter with a "billy," which was
the battery complained of. A witness who was present at the time of tthe
difficulty, was asked, "What, if anything, did such other person say to the
older brother in the presence and hearing of the officer, at that time?" which
the court refused to allow the witness to answer: Held, that the court erred
in not allowing the witness to answer the question.
2. Error will not always reverse — as to excluding evidence, and in
instructions. A refusal to allow a witness present at an assault and battery,
to testify what a person acting in concert with the party assaulted said to the
latter in the hearing of the defendant before the assault, although an error,
is no ground for reversing a judgment of conviction, when it appears that the
defendant was allowed to testify fully as to what was said and done by such
person, and that his statements could not have changed the result. Nor is
error in instructions a ground of reversal, if it appears that the result of the
trial would have been the same if the instructions had been free from error.
Writ of Error to the Appellate Court for the Third Dis-
trict; — heard in that court on appeal from the Circuit Court
of Greene county; the Hon. Geo. W. Herdman, Judge, pre-
siding.
Messrs. Patterson & Starkey, and Messrs. Withers &
Henshaw, for the plaintiff in error:
Zimm was clearly in the discharge of his duty, and law-
fully had Thomas Hynclman in his custody for a violation of
section 65, chapter 114, of the Eevised Statutes.
The court clearly erred in refusing to allow the language
of Scott to Hyndman, at the moment the blow was struck, to
4—111 III.
50 Zimm v. The People.
Brief for the People.
go to the jury. All that was then said and done was a part
of the res gesta, and should have been permitted. The court
refused to allow a specific question to the witness Barry, and
if there was no other error in this case, we insist that this
alone is sufficient to reverse the unjust judgment against
Zimm. The language of Scott, under the circumstances, is
so manifestly a part of the res gestce, that we do not deem it
necessary to present any authorities upon that point.
It was wholly irrelevant to any issue of the case that the
defendant, three or four days after the transaction, said "he
was not sorry," etc., and the court erred in calling attention
to this part of the evidence in the eleventh instruction given
for the People. Harris v. Miner, 28 111. 135 ; Coughlin v.
The People, 18 id. 266.
Substantially defective instructions of an important char-
acter are not cured by others that do state the correct rule of
law. Railroad Co. v. Harwood, 80 111. 88 ; Camp Point Manf.
Co. v. Ballou, 71 id. 417; Baldwin v. Killian, 63 id. 550.
Where instructions cross one another upon a vital point,
a good one will not cure an erroneous one. (Railroad Co. v.
Larmon, 67 111. 69.) The jury should be aided and not mis-
led by the instructions.
Mr. D. F. King, for the People:
Scott and Hyndman being then standing and talking, and
neither advancing nor making any demonstrations towards
Zimm, it was immaterial what Scott was saying to William
Hyndman at the time Zimm struck the latter.
If the whole record shows that substantial justice has been
done and no prejudice has resulted by reason of an erroneous
instruction, and that the law of the case has been fully given,
this court will not reverse. Kelley v. The People, 40 111. 488 ;
Burling, Admx. v. Railroad Co. 85 id. 18 ; Taylor v. Railroad
Co. 10 Bradw. 311 ; Warren v. Dickson, 27 111. 115 ; Howard
Fire and Marine Ins. Co. v. Carnick, 24 id. 455.
Zimm v. The People. 51
Opinion of the Court.
Mr. Justice Mulkey delivered the opinion of the Court :
This appeal brings before us for review a judgment of the
Appellate Court for the Third District, affirming a conviction
in the circuit court of Greene county, of Frank P. Zimm, for
an alleged assault and battery upon William Hyndman. The
cause was first tried before a justice of the peace, resulting
in the defendant's conviction, the magistrate fixing the fine
at ten dollars. On appeal „by the defendant to the circuit
court, the cause was there tried de novo, resulting the same
way, except that the jury fixed the fine at twenty dollars
instead of ten dollars, and the circuit court rendered final
judgment on the verdict for that amount, which, as already
stated, was affirmed by the Appellate Court.
The facts are in substance these : On the 19th of May,
1883, the defendant, being a special policeman appointed by
the mayor of the city of Eoodhouse, arrested, without war-
rant, Thomas Hyndman, a boy about seventeen years of age,
(a brother of the said William Hyndman,) for having jumped
and rode for a short distance on a passing freight train be-
longing to the Chicago and Alton Kailroad Company. His
brother, William, hearing of the arrest, came up at rather a
rapid gait, in company with one Scott, to where the officer
was, when an altercation occurred between them, in which
Scott participated. As to what actually did take place the
evidence is quite conflicting. The fact, however, is undis-
puted, that during the altercation the defendant first drew a
revolver upon WTilliam, but afterwards put that up and drew
from his pocket a "billy," with which he struck him on the
head, inflicting a wound from which the blood, for the time
being, flowed quite freely, though it turned out to be not very
serious, — and it was for this assault with the "billy," the
defendant was convicted.
With respect to controverted questions of fact three courts
have found adversely to the plaintiff in error, and we have
52 Zimm v. The People.
Opinion of the Court.
no disposition, even if we had the power, to disturb the find-
ings of those courts, for we think they are fully warranted
by the evidence.
With respect to the errors of law relied on for a reversal,
little need be said. The first point made in the brief of the
plaintiff in error relates to the ruling of the circuit court upon
a question of evidence. Witness Barry, having testified to
the circumstances attending the assault, which, as related by
him, showed that Scott was acting in concert with Hyndman,
was asked this question : "What, if anything, did Frank Scott
say to Mr. Hyndman, in the presence and hearing of Zimm,
at that time?"- — which question the court, on objection by
the People, held improper, and refused to permit the witness
to answer it. We are of opinion the court erred in not allow-
ing the witness to answer this question, yet we do not regard
the error, under the circumstances of the case, of so serious
a character as to require a reversal of the judgment. The
defendant testified on his own behalf, and gave what purports
to be a full account of the whole affair, setting forth particu-
larly what Scott did and said, and we must assume the
account which he gave of Scott's connection with the trans-
action is fully as favorable to himself as the real facts would
warrant, and we fail to discover anything in the statements
attributed to Scott on the occasion, which, in our judgment,
could possibly have changed the result, conceding them to
have been made and established before the jury by any num-
ber of witnesses, — consequently the defendant could not have
been prejudiced by the error in question.
Several objections of a technical character are made to
the instructions on behalf of the People. Without stopping
to discuss them, it may be said, in general terms, conceding
all the objections to be well founded, we do not regard any
of the errors, pointed out, of so serious a character as to re-
quire a reversal. We have no doubt but that the result would
have been the same had the instructions in question been
Bentley et al. v. O'Bryan et al. 53
Syllabus.
entirely free from the objections urged against them. Being
of this opinion, we certainly would not be warranted in revers-
ing on the grounds suggested.
The judgment will be affirmed.
Judgment affirmed.
Joseph J. Bentley et al.
v.
William O'Bryan et al.
Filed at Springfield September 27, 1884.
1. Evidence— judgment on distress for rent for defendant, to disprove
tenancy. A judgment in favor of the defendant in a proceeding by distress,
on a plea simply denying indebtedness for rent, but not putting in issue the
fact of a demise, is not admissible in evidence in another suit to disprove
there was any tenancy between the parties.
2. Former adjudication — no bar as to matter not made an issue. To
a distress warrant the defendant pleaded that he was not indebted in manner
and form as alleged in said warrant, upon which issue was taken, but filed
no plea denying the demise. A verdict and judgment were given for the
defendant: Held, that the verdict and judgment did not estop the plaintiff
in another suit from asserting that the defendant was his tenant.
3. Mortgage — presumption that a deed is not a mortgage. Where a
deed for land on its face appears to be an absolute and unconditional con-
veyance, and is acknowledged and delivered, the law will presume, in the
absence of proof showing the contrary, that it is what it purports to be, — an
absolute conveyance.
4. Same — burden of proof on question whether a deed is or not a mort-
gage. Where a warranty deed for land, absolute on its face, is claimed to
be a mortgage, only, the party alleging such to be the character of the instru-
ment must sustain his claim by evidence sufficiently clear and satisfactory to
overcome the presumption of law that it is an absolute conveyance. Loose,
indefinite and unsatisfactory evidence will not suffice.
5. Admissions — of grantor after conveying, as against grantee. The
admissions and declarations of a grantor of land, made when the grantee is
not present, can not be admitted in evidence to invalidate his deed or to affect
his grantee.
54 Bentley et al. v. O'Bryan et al.
Statement of the case.
Appeal from the Circuit Court of Champaign county; the
Hon. C. B. Smith, Judge, presiding.
This was a bill in chancery, brought by Joseph J. Bentley
and Benjamin Bentley, on February 20, 1883, against William
O'Bryan and David Bice, to have their two certain deeds of
conveyance of certain lands to William O'Bryan, dated De-
cember 7, 1878, declared a mortgage, and for leave to redeem
from the same. The bill alleges, complainants, before making
such conveyances, farmed said lands as partners ; that they,
being largely in debt, and unable to meet their liabilities, made
an arrangement with O'Bryan, who was their surety on many
of the debts, whereby he was to pay off such debts, and com-
plainants were to convey to him said lands to indemnify him
as surety, and to secure him in moneys advanced and to be
advanced by him for the complainants, or whatever sum they
might be indebted to him, O'Bryan ; that complainants should
have five years in which to pay O'Bryan the principal owing
him, with interest, and that under such arrangement said
lands were conveyed to said O'Bryan by deeds absolute upon
their face, but in reality they were mortgages to secure said
O'Bryan in his advances then and thereafter to be made, and
that O'Bryan did, in pursuance of said arrangement, pay off
most of complainants' said debts. The bill alleges various
payments which were claimed to have been made by the com-
plainants, and prayed that an account might be taken of what
was due, and for leave to redeem from such conveyances. It
also charged that O'Bryan, for the purpose of defrauding
complainants, conveyed said lands to said Bice, on August
31, 1882, without the knowledge or consent of complainants,
for $4200 in cash, and the assumption of a mortgage on
the premises, of $2200. The bill also charged that O'Bryan
claims to have leased the lands to complainant Joseph J.
Bentley, and had commenced a proceeding by distress for
rent claimed to be due, and had levied the same. The bill
Bentley et al. v. O'Bryan et al. 55
Brief for the Appellants.
prayed that all proceedings at law be enjoined, etc. Kice
and O'Bryan both answered the bill, the latter claiming that
the conveyances to him were absolute, and not as a mortgage
to secure the payment of money, and that complainant Joseph
J. Bentley remained on the lands as his tenant. Bice claimed
as a purchaser for value, without notice that the deeds to
O'Bryan were given to secure the latter, if such was the case,
and claims that he informed the complainant Joseph J., of
his intended purchase of such land from O'Bryan, and that
Joseph J. said nothing about any claim to the property. The
complainants afterwards filed their supplemental bill, which
was amended so as to set up certain proceedings by O'Bryan
to collect rent by distress, and a finding and judgment against
the claim for rent as res judicata, upon the question of there
being the relation of landlord and tenant between said Joseph
J. and the said O'Bryan. The court sustained a demurrer to
this amended supplemental bill. The cause was heard on
the bill, answers, replication thereto, and proofs, and a decree
entered dismissing the bill, and for costs against the com-
plainants. From this decree the complainants bring the case
to this court by appeal, and assign for error the sustaining
of the demurrer to their amended supplemental bill, and the
dismissal of such bill and the original bill.
Messrs. Lothrop & Wolfe, for the appellants :
Declarations and admissions, when deliberately made, are
the most satisfactory character of evidence ; but casual re-
marks or expressions, carelessly made, are unsatisfactory and
inconclusive. Frizell v. Cole, 29 111. 465 ; Railway Co. v.
Button, 68 id. 409 ; Straubher v. Mohler, 80 id. 21 ; Hartley
v. Lybarger, 3 Bradw. 554.
In a proceeding to redeem from a deed given as a mortgage,
the statements and admissions of parties, favorable to their
own interests, should be received with great caution, because
they may be readily fabricated or distorted. Abom v. Burnett,
56 Bentley et at. v. O'Bryan et al.
Brief for the Appellants.
2 Blackf, 101; Cornell v. Erill, 4 id. 67; Miller v. Thomas,
14 111. 430.
If the relation of debtor and creditor still remains, the con-
veyance must be regarded as a mortgage. 1 Jones on Mort-
gages, 264; Sutplien v. Cushman, 35 111. 187.
In equity, the intention of the parties that the deed shall
stand as a security stamps it infallibly as a mortgage. Till-
son v. Moulton, 23 111. 64S ; Heath v. Williams, 30 Ind. 495 ;
Adams' Equity, 111; Willard's Eq. Jur. 432.
The intention of the parties must control. (Ewart v. Wall-
ing, 42 111. 453; 1 Jones on Mortgages, 25S, 263, 265.) And
circumstances, as much, if not more, than the declarations
of the parties, show the intent. 1 Jones on Mortgages, 267 ;
Enner v. Thompson, 46 111. 215; Sutplien v. Cushman, 35 id.
187; Lindauer v. Cummings, 57 id. 195.
The retention of the evidences of indebtedness by the
grantee, uncancelled and unsatisfied, will, in equity, create
the deed a mortgage. 1 Jones on Mortgages, 267; Mont-
gomery v. Chadivich, 7 Iowa, 114.
In proceedings of this character it never escapes the eye
of the court that the debt is not satisfied by the conveyance.
Smith v. Cremer, 71 111. 185 ; Sutplien v. Cushman, 35 id. 186;
1 Jones on Mortgages, 167, 269 ; Coats V. Woodworth, 13 111.
656; Bartling v. Brasuhn, 102 id. 444; Miller v. Thomas, 14
id. 429; Hanford v. Blessing, 80 id. 190; Colwell v. Woods,
3 Watts, 188; Wharp v. Howell, 5 Birney, 503; 2 Leading
Cases in Eq. (part 2,) 444; Robinson v. Crosby, 2 Edw. Eq.
138 ; Robinson v. Crosby, 1 Paige, 480 ; 1 Hal. Rep. (Sumner,)
350 ; 3 Am. Chy. Dig. 28 ; Preshbaker v. Feeman, 32 111. 484.
When the intent is doubtful, the courts will construe deeds
to be mortgages, and are not inclined to construe them as
conditional or absolute sales. 1 Jones on Mortgages, 279 ;
Bishop v. Williams, 15 111. 553; Miller v. Thomas, 14 id. 428;
Pensoneaii v. Pidliam, 47 id. 58; Bright v. Wagle, 3 Dana,
253 ; 3 Am. Chy. Dig. 22.
Bentley ct al. v. O'Bryan et al. 57
Brief for the Appellees.
Matters in bar of the defence, occurring subsequently to the
filing of the original bill, are properly set up in a supplemental
bill. Burke v. Smith, 15 111. 158 ; Mix v. Beach, 46 id. 311 ;
Fahs v. Roberts, 54 id. 192.
It is a familiar rule that a former adjudication is a bar as to
all matters therein properly involved, and which might have
been raised and determined in it. Rogers v. Higgins, 57 111.
244 ; Lathrop v. Hayes, 57 id. 279 ; Briscoe v. Lloyd, 64 id.
33; Town of Lyons v. Cooledge, 89 id. 529.
Mr. J. L. Bay, and Mr. J. 0. Cunningham, for the appellees :
The judgment in the distress suit was not evidence on the
question of tenancy, as that was not put in issue or involved.
The only issue was, whether there was rent due. Wells on
Beplevin, 401 ; Taylor on Landlord and Tenant, 557 ; Bloomer
v. Juble, 8 Wend. 448 ; Freeman on Judgments, 222.
Deeds absolute in form, made, acknowledged and delivered,
the law presumes to be what they purport to be, — absolute
conveyances. Sharp v. Smitherman, 85 111. 153; Hancock v.
Harper, 86 id. 445.
Where deeds like these, absolute in form, are claimed to
be mortgages only, the party alleging such a character must
sustain his claim by evidence sufficiently preponderating to
overcome this presumption of the law. Loose, indefinite
and unsatisfactory evidence will never suffice. Wilson v
McDowell, 78 111. 517; Hancock v. Harper, 86 id. 446; Sharp
v. Smitherman, 85 id. 153; LindauerY. Cummings, 57 id. 195
Remington v. Campbell, 60 id. 516 ; Dwen v. Blake, 44 id. 135
Sutphen v. Cushman, 35 id. 186 ; Low v. Graff, 80 id. 360
Price v. Karnes, 59 id. 276 ; Magnusson v. Johnson, 73 id
156; Knoivles v. Knowles, 86 id. 1; Clark v. Finlon, 90 id
245 ; Bartling v. Brasuhn, 102 id. 441 ; Shays v. Norton, 48
id. 100 ; Taintor v. Keys, 43 id. 332.
Evidence of a parol agreement between parties, to the effect
that a deed absolute in form was actually intended as a mort-
58 Bentley et al. v. O'Bryan et al.
Opinion of the Court.
gage, is not sufficient to establish such a claim, unless facts
and circumstances in evidence also concur in showing this
fact, and in showing the actual relation of debtor and creditor
to exist between the parties. Sutphen v. Cushman, 35 111.
187; Davis v. Hopkins, 15 id. 520; Bishop v. Williams, 18
id. 101 ; De Wolf v. Strader, 26 id. 225; Knoivles v. Knowles,
86 id. 1 ; Taintor v. Keys, 43 id. 332.
If the deeds were at first intended as mortgages, made to
secure debts then due, and to secure future advancements,
then we say that the acts of the parties, and Bentley's oft
repeated declarations, show an abandonment of that claim or
character, and a cancelment of that secret agreement. This
is especially true where, as here, the rights of third parties
have intervened. Maxfield v. Patclien, 29 111. 42 ; Ferguson
v. Tallmadge, 20 id. 599; Carpenter v. Carpenter, 70 id. 457;
Clark v. Finlon, 90 id. 245 ; Wyncoop v. Cowing, 21 id. 570.
The evidence adduced by complainants in this case shows
rather a contract to repurchase the lands. Especially is this
true of the admissions by O'Bryan. Such being the fact, the
decree dismissing the bill was proper. Pitts v. Cable, 44 111.
103 ; Hartford v. Blessing, 80 id. 188.
Mr. Justice Dickey delivered the opinion of the Court :
The complainants in this case contend that their convey-
ances of the lands to O'Bryan, though absolute in form, are
only a security in the nature of a mortgage. It appears that
the complainants, and part of the time another brother, David
Bentley, were partners, and interested as such in the lands
in dispute, though the title to one tract stood in Joseph J.
Bentley, and the other in Benjamin Bentley; that the part-
nership business was conducted mainly by Joseph J., and
that in conducting the business, (principally farming,) debts
were contracted, and both tracts of the land were mortgaged
or conveyed by trust deed to one Harmon, to secure a loan
Bentley et al. v. O'Bryan et al, 59
Opinion of the Court.
of $2250, which was used to discharge such debts, and other-
wise, in the partnership business ; that further indebtedness
was contracted in the business to divers persons, for which
notes of the Bentleys were given, upon nearly all of which
O'Bryan was security ; that O'Bryan had paid one or more of
these security debts, for which complainants, on December
7, 1878, were owing him, besides other unsettled accounts
between them ; that complainants, and O'Bryan with them,
were being pressed by the creditors of the Bentleys, judg-
ments were taken and others threatened, and that on Decem-
ber 7, 1878, complainants conveyed the lands to O'Bryan
by warranty deeds, but no money or thing of value passed
from O'Bryan to the complainants as a consideration for
such conveyances. The only consideration for the convey-
ances was the agreement of O'Bryan with complainants at
the time, but what that agreement was is the subject of dis-
pute in this cause. Shortly after making these conveyances
the partnership of the Bentleys was dissolved, and Benjamin
and David Bentley left the farm, Joseph J. Bentley remain-
ing in the exclusive occupancy and apparent exclusive con-
trol of the farm up to the filing of this bill, and who paid
and delivered to O'Bryan, from time to time thereafter, both
money and grain. O'Bryan, after such conveyances, paid, or
caused to be paid, a large part of the complainants' indebted-
ness, taking receipts to himself, and retaining old notes and
mortgages taken up by him.
The complainants contend that their deeds to O'Bryan
were mortgages, made with the express agreement that they
should be security to O'Bryan for what complainants then
owed him, and for future advances to be thereafter made by
O'Bryan in paying off complainants' debts, and that Joseph
was to remain upon the farm, pay a sum each year sufficient
to pay interest and the annual taxes, and have five years in
which to discharge the indebtedness and redeem the land
from the mortgage lien. The defendants claim that the
60 Bentley et al. v. O'Bryan et al.
Opinion of the Court.
deeds are absolute conveyances, made in pursuance of an
agreement to sell the land to O'Bryan at $30 per acre, to be
paid by O'Bryan in taking up complainants' indebtedness ;
that if the debts were less than the price, the balance should
be paid to Joseph J. Bentley by O'Bryan, and if more, Bentley
was to repay such excess to O'Bryan, and that at the same
time a separate agreement was made between O'Bryan and
Joseph J. Bentley for the leasing of the land to the latter for
one-third of the crops raised on the same, and that Joseph J.
has since occupied said land under such agreement for renting.
To estop the defendant O'Bryan from setting up and claim-
ing the relation of landlord and tenant between him and
Joseph J. Bentley, and that the latter was to pay rent for the
land, complainants, by their amended supplemental bill, set
up a judgment in favor of the defendant, in a proceeding by
distress for rent, brought by O'Bryan, against said Joseph
J. Bentley. The circuit court sustained a demurrer to this
amended supplemental bill, and this is assigned for error.
Upon the hearing the complainants offered in evidence the
record in the distress proceeding as a bar to the defence set
up, which the court refused to admit, and this is also urged
as an error. We think there was no error in either ruling
of the court. A proceeding by distress for rent may involve
two issues, — that is, whether the relation of landlord and
tenant exists, and whether any rent is due. The proceeding
in this case was commenced on September 12, 1882, by
O'Bryan, against Joseph J. Bentley, and was tried after the
conveyance to Bice. It was brought to recover rent claimed
to have accrued before the conveyance to Bice. To the dis-
tress 'warrant, as amended, the defendant therein pleaded
that he was not indebted in manner and form as alleged in
said warrant, upon which issue was taken. There was no
plea denying the demise, and the verdict found that there
was no rent due the plaintiff at the time of suing out the dis-
tress warrant. The judgment of the court was to the same
Bentley et al. v. O'Bryan et al. 61
Opinion of the Court.
effect. The verdict might have been the result of a finding
that the rent had not matured, or had been paid, or that a
deed of the lands to Eice before the rent was due, transferred
O'Bryan's rights to him. The verdict and judgment can not
be regarded as an estoppel upon O'Bryan to claim that Bent-
ley was his tenant before he conveyed to Bice. They were
not even evidence in favor of Joseph J. Bentley upon the
real issue involved in his bill. They could not afford any
evidence that complainants' deeds were given merely as secu-
rities for the payment of money.
As to the conveyance of Benjamin Bentley to O'Bryan, of
his eighty-acre tract, there can be but little doubt that it was,
and is, an absolute deed. He testifies as follows : "O'Bryan
first wanted a mortgage, and then the mortgage matter fell
through for some reason, and then he proposed taking a deed.
O'Bryan made a statement to me that if my brother Joseph
should stay on the farm and redeem, he would throw off $500.
The arrangement was for him (O'Bryan) to see that the in-
debtedness was paid off, and release me. That was all the
arrangement we had on the subject." He afterwards states
that he derived his knowledge of the arrangement from what
his brother said. His deed to O'Bryan was made subject to
the incumbrances then on the land, and upon making the
same he left the State, and has ever since made his home in
Pennsylvania, and he has never claimed any right to redeem,
or that he ever had any agreement with O'Bryan giving him
a right to redeem. His subsequent conveyance to his brother
Joseph, without any consideration, gives him no right of re-
demption. As to this tract there was no error in dismissing
the bill.
Where a deed for land on its face appears to be an absolute
and unconditional conveyance, and is acknowledged and de-
livered, the law will presume, in the absence of proof showing
the contrary, that it is what it purports to be, — an absolute
conveyance. {Sharp v. SmitJierman, 85 111. 153; Hancock v.
62 Bentley et al. v. O'Bryan et al.
Opinion of the Court.
Harper, 86 id. 445.) Where a warranty deed for land abso-
lute in form is claimed to be a mortgage only, the party
alleging such a character must sustain his claim by evidence
sufficiently clear and satisfactory to overcome this presump-
tion of the law. Loose, indefinite and unsatisfactory evi-
dence will never suffice. Wilson v. McDowell, 78 111. 517 ;
Lindauer v. Cummings, 57 id. 195; Remington v. Campbell,
60 id. 516; Dwen v. Blake, 44 id. 135; Sutphen v. Cushman,
35 id. 186; Low et al. v. Graff et al. 80 id. 360; Price v.
Karnes, 59 id. 276; Magnusson v. Johnson et al. 73 id. 156;
Knowles et al. v. Knowles, 86 id. 1 ; Clark v. Finlon, 90 id.
245 ; Bartling et al. v. Brasuhn et al. 102 id. 441 ; Shays et al.
v. Norton, 48 id. 100; Taintor v. Keys et al. 43 id. 332.
It is not necessary to review the evidence on this branch
of the case. It is sufficient* to say that in our opinion it
does not overcome the presumption of law that the deeds are
absolute conveyances. It may be further observed that the
declarations and admissions of O'Bryan, made after his con-
veyance of the premises to Bice, not in the presence of Bice,
can not be received and considered as against Bice. The
law is well settled that declarations of a grantor when the
grantee is not present, can not be admitted to invalidate his
deed or to affect the grantee. Barrett v. French, 1 Conn.
354 ; Pettibone v. Phelps, 13 id. 450 ; White v. Wheaton, 16
id. 535.
Perceiving no error in the record, the decree of the circuit
court is affirmed.
Decree affirmed.
King v. City of Chicago. 63
Syllabus.
Eockwell King
. v.
The City of Chicago.
Filed at Springfield September 27, 1884.
1. Municipal cokpoeations — passage of annual appropriation ordi-
nance. Although a city council is made to consist of a mayor and aldermen,
the requirement, under the general law for the incorporation of cities and
villages, that the city council shall, within the first quarter of the fiscal year,
pass an ordinance to be termed the "annual appropriation bill," does not
mean £hat there shall be passed a complete ordinance, having the sanction
both of the city council and mayor, within that time. City council and
mayor are distinguished from each other in this respect.
2. Same — of the mayor's veto of appropriation bill. The city council
is given the last moment of the period named to pass the appropriation bill,
after which the mayor has at least five days in which to give or withhold his
approval, either in whole or in part.
3. Same— what is a passage of appropriation ordinance within the first
quarter. Upon the return by the mayor of an appropriation ordinance with
a veto as to any item thereof, it is made the duty of the city council to recon-
sider the vote by which it passed, and if upon such reconsideration after the
expiration of the first quarter of the fiscal year, vetoed items of an appropria-
tion bill passed within such quarter be passed by the council over the veto,
the appropriations are to be taken, within the meaning of the law, as having
been passed within the first fiscal quarter.
4. So where the mayor of a city returns an appropriation ordinance with
his veto as to one item thereof, for the reason that it is too large, the same
having been passed on the last day of the first quarter of the fiscal year, but
returned at the next meeting of the council thereafter, and the city council
then passes the same, at a reduced sum, over the veto, this will be regarded
as an adherence to the appropriation first made, in part, and the same will be
legal, as having been passed in proper time. The right to pass the whole
over a veto includes the power to pass the same in part, and adhering in part
to the item of appropriation is not a further appropriation.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county ; the Hon. Henry M. Shephard, Judge, presiding.
64 King v. City of Chicago.
Opinion of the Court.
Mr. Geo. Mills Kogers, for the appellant.
Mr. F. S. Winston, Jr., Corporation Counsel, for the ap-
pellee.
Mr. Justice Sheldon delivered the opinion of the Court :
The bill of complaint in this case, filed by a tax-payer of
the city of Chicago, alleges that the city is organized under
the general law for the incorporation of cities and villages ;
that its fiscal year runs from January 1 to January 1 ; that
it is the duty of the city council to pass the annual appropri-
ation bill within the first quarter of the fiscal year, and that
no appropriations can legally be made after such time except
by a sanction of a majority of the legal voters of the city, and
that it is unlawful to acid to the corporation expenditures in
any year anything above the amount provided for in the
annual appropriation bill, except upon the happening of a
casualty or accident ; that there was duly passed on March
31, 1884, (the last day of the first quarter of the fiscal year
1884,) the annual appropriation bill for said fiscal year ; that
the next regular meeting of the city council occurred on April
7, 1884, at which meeting the mayor vetoed a number of
items or appropriations contained in the bill, among which
was the following : "For salary of three policemen for may-
or's and comptroller's offices, at $1000 each, $3000." The
objection made by the mayor was, that two instead of three
policemen were all that were needed for the service, and that
a salary of $945 each, instead of $1000, was sufficient.
The bill further alleges that upon receipt of the veto message
the vote by which the appropriation bill was passed was duly
reconsidered by the city council at the meeting of April 7,
1884, when it agreed, by a vote of twenty-nine yeas to two
nays, to adhere to the item for policemen for mayor's and
comptroller's offices, and pass the same to this extent, — that
is to say, to appropriate for salary of two instead of three
King v. City of Chicago. G5
Opinion of the Court.
policemen for said purpose, and to fix said salaries at $945
instead of $1000 per annum, as recommended in the veto
message, and the said item as passed by the council at the
meeting of April 7, 1884, by said vote, was as follows : "For
salary of two policemen for mayor's and comptroller's offices,
at $945 each, $1890." The bill avers that the said appro-
priation was duly approved by the mayor after being depos-
ited in the office of the city clerk, and that due publication
was had ; that since the passage of said appropriation bill on
March 31, 1884, there had been no petition by a majority of
the legal voters of the city for any farther appropriation, and
no such proposition had been voted upon, and that since that
time there had occurred no casualty or accident. The bill
charges that this appropriation for two policemen, as passed
April 7, 1884, was illegal, in that it was not made within
the first quarter of the fiscal year, and an injunction was
asked to prevent the city and its officers from incurring any
expense or entering upon any contract based upon such appro-
priation. A demurrer to the bill was sustained, and the bill
dismissed. On appeal to the Appellate Court for the First
District the decree was affirmed, and the complainant ap-
pealed to this court, the proper certificate having been made.
The sole question which is presented for our decision upon
the demurrer to the bill, is as to the legality of the appropri-
ation in question, in the respect of its having been made, or
not, by the city council within the first quarter of the fiscal
year.
The provisions of the general law governing the passage of
appropriation bills in chapter 24, of the Eevised Statutes of
1874, are as follows: "The city council of cities, and board
of trustees in villages, shall, within the first quarter of each
fiscal year, pass an ordinance, to be termed the 'annual
appropriation bill,' in which such corporate authorities may
appropriate such sum or sums of money as may be deemed
necessary to defray all necessary expenses and liabilities of
5—111 III.
t>6 King v. City of Chicago.
Opinion of the Court.
such corporation, and in such ordinance shall specify the
objects and purposes for which such appropriations are made,
and the amount appropriated for each object or purpose.
No further appropriations shall be made at any other time
within such fiscal year, unless the proposition to make each
appropriation has been first sanctioned by a majority of the
legal voters of such city or village, either by a petition signed
by them, or at a general or special election duly called there-
for." (Art. 7, sec. 2.) "The city council shall consist of the
mayor and aldermen." (Art. 3, sec. 1.) "All ordinances
passed by the city council shall, before they take effect, be
deposited in the office of the city clerk; and if the mayor
approves thereof he shall sign the same, and such as he
shall not approve he shall return to the council with his
objections thereto, in writing, at the next regular meeting of
the council occurring not less than five days after the pas-
sage thereof. Such veto may extend to one or more items or
appropriations contained in any ordinance making an appro-
priation, or to the entire ordinance ; and in case the veto
only extends to a part of such ordinance, the residue thereof
shall take effect and be in force." (Art. 3, sec. 18.) "Upon
the return of any ordinance by the mayor, the vote by which
the same was passed shall be reconsidered by the council,
and if, after such reconsideration, two-thirds of all the mem-
bers elected to the city council shall agree, by yeas and nays,
to pass the same, it shall go into effect, notwithstanding the
mayor may refuse to approve thereof." (Art. 3, sec. 19.)
Although the city council is made to consist of the mayor
and aldermen, the requirement that the city council shall,
within the first quarter of the fiscal year, pass an ordinance
to be termed the "annual appropriation bill," does not mean
that there shall be passed a completed ordinance, having the
sanction of both city council and mayor, within that time.
City council and mayor are distinguished from each other in
this requirement. The council is given until the last moment
King v. City of Chicago. 67
Opinion of the Court.
of the period named to pass the appropriation bill, and then
afterward is to come the action of the mayor upon it. The
law expressly provides for the action of the mayor upon an
ordinance after it shall have been passed by the city council,
giving him at least five days' additional time therefor, in
requiring that all ordinances passed by the city council shall,
before they take effect, be deposited in the office of the city
clerk, for the mayor to approve or not approve, and that such
as he shall not approve he shall return to the council with
his objections thereto, in writing, at the next regular meeting
of the council occurring not less than five days after the pas-
sage thereof. Upon the return of the ordinance by the mayor,
it is made the duty of the council to reconsider the vote by
which the same was passed. If upon such reconsideration
after the expiration of the first quarter of the fiscal year,
vetoed items of an appropriation bill passed within such first
quarter be passed by the council over the veto, the appropria-
tions are to be taken, within the meaning of this provision in
question, as having been passed within the first fiscal quarter.
This was so expressly decided by this court in Fairfield v.
The People, 94 111. 245. There, under a former but similar
charter to the law under which the city of Chicago is now
acting, in that it required all appropriations to be passed
within the first quarter of the fiscal year, the appropriation
ordinance for the fiscal year commencing April 1, 1873, was
passed by the city council June 30, 1873, which, as in this
case, was the last day of the quarter. At the next regular
meeting of the council, on July 7, 1873, (after the expiration
of the first fiscal quarter,) a message was presented by the
mayor vetoing certain items of the appropriation bill, and at
that meeting the council passed most of the vetoed items
over the veto. It was claimed that such items were illegal,
in not having been passed within the first quarter of the fiscal
year, but it was held that the appropriations were made dur-
68 King v. City of Chicago.
Opinion of the Court.
ing the first quarter of the fiscal year, within the meaning of
the charter provision.
We think that decision must be held' to govern the present
case. It is true the cases differ in the respect that in the
Fairfield case the council adhered to the items of appropria-
tion as before passed, while in the present case the appropri-
ation is not the same as originally passed, but changed by
reducing it. We do not see that this makes any difference
between the cases, in principle, It was considered, in the
former case, that the subsequent action of the council after
the first quarter of the fiscal year, amounted in law but to an
adherence to appropriations previously made, — and for the
same reason, we think, it must be regarded, here, that the
subsequent action of the council on June 7, 1884, reducing
the appropriation in amount and repassing it as reduced,
amounted to an adherence, pro tanto, to the appropriation
which had been made on May 31, 1884, and is to be consid-
ered, within the meaning of the statute in this respect, as
having been made within the first quarter of the fiscal year.
The whole includes a part. The passage of the appropriation
in its entirety within the time limited, included within it the
passage of any part of the appropriation — the reduced por-
tion— within that time. There was here no change of appro-
priation in object or increase in amount. The appropriation
was the same, except that it was reduced in amount. Such
reduced appropriation is not, we think, to be regarded as the
further appropriation which the law forbids to be made after
the expiration of the first quarter of the fiscal year, the lan-
guage being: "No further appropriations shall be made at
any other time within such fiscal year, unless," etc. The
requirement that the annual appropriation bill shall be passed
within the first quarter of the fiscal year, we regard as to
some extent in the interest of the tax-payer, and that the
reduction of an appropriation is rather for the tax-payer's
benefit, in its tendency to lessen the burden of taxation.
Cabmody'w. C. & A. E. K. Co. 69
Syllabus.
It is objected to the construction we adopt, that if it had
been known at the time of the passage of the appropriation
ordinance that this smaller amount only would be needed for
the mayor's and comptroller's police, the amount in excess
might have been granted to some other useful purpose. This
is a consideration of minor importance, which dwindles before
the power to be able to reduce excessive appropriations.
The further question is raised whether it is in the power
of the mayor to veto a particular portion of an item contain-
ing several different things for which money is appropriated.
The language of article 3, section 18, bearing upon this point,
is: "Such veto may extend to any one or more items or
appropriations contained in any ordinance making an appro-
priation, or to the entire ordinance," etc. The item here
was : "For salary of three policemen for mayor's and comp-
troller's offices, at $1000 each, $3000." The mayor's veto
was not of a particular portion of this item, but of the entire
item, so that the question raised is not one which properly
arises upon this record, and we do not feel called upon to
consider it.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
Connor Carmody
v.
The Chicago and Alton Eailroad Company et al.
Filed at Springfield September 27, 1884.
1. Limitation — of twenty years' adverse possession. Where the party
under whom a plaintiff in ejectment claimed land occupied by a railway com-
pany, made a conveyance of the same to a railway company, moved his fence,
and gave it possession of the land more than twenty years before suit brought,
and such company, together with the defendant corporation, as its successor,
70 Carmody v. C. & A. E. E. Co.
Brief for the Appellant.
had occupied the same ever since under such release, it was held, that the
plaintiff could not recover.
2. Eailboad — right to acquire more than one hundred feet. A charter
giving a railroad company a right to acquire a strip of land not exceeding one
hundred feet in width, has reference to right of way for a single or double
track, and does not prohibit it from acquiring more land for depot grounds
and side-tracks at stations.
Appeal from the Circuit Court of Greene county ; the Hon.
George W. Herdman, Judge, presiding.
Mr. James E. Ward, for the appellant :
Section 1 of the charter of the Jacksonville and Carrollton
Eailroad Company only authorized the taking of a strip of
land not exceeding one hundred feet in width. The release
specifies its purpose to be "for depot ground and right of
way, and for no other purpose." Section 15 of the charter
provides: "The width of said railroad is to be determined
by the said corporation, within the limits prescribed by the
first section of this act."
Such grants to a corporation are to be strictly construed.
Railroad Co. v. Dunbar, 20 111. 626 ; Webster v. People, 98 id.
347 ; Newhall v. Eailroad Co. 14 id. 275.
The limitation in the charter goes to its capacity to acquire
more land than a strip one hundred feet wide. Catholic Con-
gregation v. Germain, 104 111. 446; Penn v. Bornman, 102 id.
533; Fridley v. Boiven, 87 id. 151; United States Trust Co.
v. Lee, 73 id. 143 ; Starkweather v. American Bible Society, 72
id. 50 ; Carroll v. East St. Louis, 67 id. 569.
The paper from William E. Davis was not intended to pass
any title. The right of way was personal to the company in
gross, which could not be transferred or assigned to any other
company or person. 2 Kent's Com. 420 ; Koelle v. Knecht,
99 111. 401 ; Railroad Co. v. Koelle, 104 id. 460 ; Emerson v.
Rudd, 19 id. 564.
Carmody v. C. & A. E. E. Co. 71
Brief for the Appellees.
Messrs. Withers & Henshaw, for the appellees :
Luella V. Davis did not own the entire interest in this
strip of land, and could not convey any greater estate than
she had.
Possession of land and a claim of right are sufficient to
charge all persons of the occupant's right, whether legal or
equitable. Lumbard v. Abbey, 73 111. 177; Smith v. Heirs of
Jackson, 76 id. 254; Doolittle v. Cook, 75 id. 354; Tunison
v. Chamblin, 88 id. 3SS.
A plaintiff in ejectment must recover on the strength of
his own title, and must have such an estate as to entitle him
to the present possession of the land. Marshall v. Barr, 35
111. 106.
An outstanding title in a third person, superior to that of
the plaintiff, is sufficient to defeat a recovery in ejectment,
although there be no connection of that title with defendant.
BaUance v. Flood, 52 111. 49.
The defendant may, though a trespasser, show title out
of the plaintiff, in order to defeat the suit. Hulick v. Scovil,
4 Gilm. 159.
A party need not have his land inclosed before he can be
said to be in the actual possession thereof. Use of the land
is sufficient, or actual occupancy of a part under a deed.
The deed will enlarge the possession to all the land it in-
cludes, and possession for twenty years of a part constitutes
title to the whole. Austin v. Rust, 73 111. 491 ; Fairman v.
Beat, 14 id/ 244.
There is no limitation in the charter of the Jacksonville
and Carrollton Eailroad Company as to donations to it for
corporate purposes. There is nothing in the evidence to show
that the whole of this ground is not absolutely necessary,
either now or at some future time, for "depot and right of
way purposes."
Carmody v. C. & A. E. E. Co.
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court :
This suit was commenced in ejectment by Connor Car-
mody, against the Chicago and Alton Eailroad Company and
others, and as originally brought it was to recover a strip of
land two hundred and fifty feet wide by twelve hundred and
twenty-one feet, which the half section line running north
and south through section 23 divided in equal parts, making
a strip one hundred and twenty-five feet wide by twelve hun-
dred and twenty-one feet long, on each side of the half sec-
tion line. At the trial at the special December term, 1883,
plaintiff dismissed his suit as to two of defendants, and by
leave of court struck out of his declaration all that portion
of the land lying west of the half section line, so the litiga-
tion now concerns that strip of land described in the declara-
tion as lying east of such line. Plaintiff, by his declaration,
claimed the land in fee simple, and on the trial of the cause
made oath that he claimed title through a common source
with defendants,— that is, from William E. Davis, deceased.
No question is made as to the ownership in Davis, in his life-
time, of the south-west quarter of the north-east quarter, and
the north-west quarter of the south-east quarter, of section
23, in which the land in controversy is situated. Plaintiff
claims the land by purchase from one of the heirs of William
E. Davis, and tjie defendant railroad company insists upon,
as a defence, a deed of release from Davis to the Jacksonville
and Carrollton Eailroad Company, made on the 7th day of
January, 1857, and by actual possession for a period of more
than twenty years.
The point made that plaintiff has shown no title in himself,
seems to be well taken, and certainly not as to the extent of
the title claimed. The title plaintiff insists upon, he acquired
by deed from Luella V. Davis, one of the heirs of William
E. Davis, deceased, who was the original owner in fee of the
land. At his death, which occurred on the 18th day of No-
Carmody v. C. & A. E. E. Co. 73
Opinion of the Court.
vember, 1875, William E. Davis left only two heirs to his
estate, namely, Eobert A. Davis and Luella V. Davis, and
as he died intestate, whatever estate he left, vested in his two
surviving children. Eobert A. Davis afterwards married, but
died without leaving any child or descendants of any child,
and hence his interest in his father's real estate went to his
surviving widow, Annie Davis, and his sister, Luella V. Davis.
After the death of her husband, Annie Davis filed a petition
for partition and dower in his estate which he had inherited
from his deceased father. It will be seen the petition, among
other lands, asked for dower in and partition of the south
part of the south-west quarter of the north-east quarter,
containing 39-j^- acres, and a part of the north-west quar-
ter of the south-east quarter, containing 38T4^0 acres, "being
the whole of the last described tract, one yjj-^- acres conveyed
to the railroad," all in section 23. Evidently the word "ex-
cept" was inadvertently omitted before the "one r^ acres,"
for in the decree which directs partition to be made it reads
"except one and r^ acres." The Chicago and Alton Eail-
road Company was then in the actual possession of the land
now in dispute, but it was not made a party to the partition
proceeding. It must have been omitted because the land it
had in possession was not embraced in the petition for par-
tition, and was not to be affected by the decree to be rendered.
The decree expressly excludes all of that portion of the land
in controversy situated in the north-west quarter of the south-
east quarter, and it is quite evident that portion in the south-
west quarter of the north-east quarter is also excluded, because
when the commissioners made their report of the division of
the estate, they say they have divided the 39T7^ acres situ-
ated in the south-west quarter of the north-east quarter. In
that respect they followed the petition and decree. It is plain
the "39Tyo- acres" was not all of the south-west quarter of
the north-east quarter, and that portion divided was evi-
dently all of the tract, except the part in the possession
74 Cahmody v. C. & A. E. E. Co.
Opinion of the Court.
of the defendant railroad company which is now in dispute.
It is apparent, then, the commissioners never intended to,
and never did, in fact, assign the land comprised in the
strip in dispute to Luella. V. Davis. A part of it was ex-
pressly excepted, and it is plain the remaining portion was
not assigned. The fact plaintiff took a deed from Luella V.
Davis alone, makes it clear he expected only to get the por-
tion of the estate of her father that had been assigned to
her. Indeed, that is the only claim of title now insisted
upon. But if his deed embraced the strip in dispute, it is
equally clear it was not divided by the commissioners. Luella
V. Davis did not have the whole title to convey to plaintiff.
Her brother's widow's interest still remained in it. There
having been no division of that part of the estate between
the heirs of the intestate, it would seem to follow that in no
event could plaintiff recover all the land described in his
declaration. But this point need not be further considered,
as the decision may be placed on the broader and more sub-
stantial ground the deed of release made by William E. Davis
in 1857, when he was in possession of the land, is a bar
to any recovery by his heirs, or any one claiming under or
through them. The proof is, Davis, at the time of making
the deed of release, resided on the land, and after making
the deed he moved his fence to make way for the railroad,
and it has stood where he placed it ever since. The owner
donated the land for depot ground and right of way, and
gave possession to the railroad, which it and its successors
have since retained, being a period of more than twenty
years. Whether the railroad has permitted the lands to be
used for "other purposes" than the same mentioned in the
deed of release, is a question that plaintiff can not raise on
this record.
There is nothing in the point made that section 1 of the
charter of the railroad company confined its right to acquire
land to a strip "not exceeding one hundred feet in width. "
Stark v. Eatcliff. 75
Syllabus.
That section has reference to right of way for a single or
double track, and certainly did not forbid the company to
acquire more land for depot grounds and side-tracks at sta-
tions.
The instructions asked and given at the trial are quite
numerous, and without considering them separately, it is
sufficient to say no error has intervened in that respect to
the prejudice of plaintiff. No other verdict than the one ren-
dered would have been justified by the evidence, and it will
not be necessary to inquire whether some slight error may
not have occurred in the action of the court in giving and
refusing instructions at the trial.
The judgment must be affirmed.
Judgment affirmed.
Simeon Stark
v.
Moses Eatcliff.
Filed at Springfield September 27, 1884.
1. Pleading and evidence — variance in description of land. In an
action upon the covenants of warranty in a deed for land, the declaration
described the land as "twelve hundred and eighty acres of land in Wichita,
on the waters of Gilbert creek, and described as follows: beginning at a
stake in the south-west corner of survey No. 1, made for the B. B. B. &
C. K. B. Co., and 950 vers east from the north-west corner of a survey made
in the name of L. Wells," etc., giving the metes and bounds. The deed gave
the same description, except after the words "Gilbert creek," are the fol-
lowing additional words: "Patented to W. W. Purinton on the 7th day of
November, 1873 — Patent No. 404, volume No. 8:" Held, that these words
afforded no ground for excluding the deed as for a variance.
2. Pleading — particularity of description required. It is not required
by the rules of good pleading that the pleader shall, in every case, when
describing an instrument or object, specify all the means by which it may
be properly identified. In such case it will suffice if the marks or means
76 Stark v. Katcliff.
Brief for the Appellant.
of identification specified distinguish such instrument or object with reason-
able certainty.
3. Same — covenant for breach of warranty — description of the land.
In an action for the breach of the covenants in a warranty deed, it is a matter
of no consequence whether the land to which the covenants relate is as fully
described as it might be, or even as in the defendant's deed, provided the
declaration shows, with reasonable certainty, it is the' same land to which the
covenants relate.
4. Jurisdiction — when defendant must plead— waiver. If a local action
is brought against one in the wrong county, and the court in which the action
is brought has a general jurisdiction in that class of cases, the defendant
must plead to the jurisdiction, or otherwise take advantage of the irregularity
in the court in which the action is brought, and failing to1 do so he can not
question collaterally the validity of the judgment which may be rendered in
that suit.
5. The constitution of Texas expressly gives the District Court of that
State jurisdiction in all suits for the trial of title to land, but there is a stat-
ute of that State requiring suits for the recovery of land to be brought in the
county where the land lies. An action of ejectment for land in such State
was brought in the District Court, but not in the county where the land was
situate, and no objection being made to the jurisdiction, that court rendered
judgment for the plaintiff: Held, that as that court had a general jurisdic-
tion over the subject matter, its judgment could not be treated as void in a
collateral action in this State, and that such judgment was admissible in evi-
dence to show an eviction of the defendant in ejectment.
6. Foreign judgment — validity tested by laws of State where it is
rendered. In determining the validity, force and effect of a judgment of a
sister State, our courts must look to the laws of such other State, and be
governed by the construction its courts have given the laws of such State.
Appeal from the Circuit Court of Edgar county; the Hon.
J. W. Wilkin, Judge, presiding.
Mr. James A. Eads, and Messrs. Sellar & Dole, for the
appellant :
In Texas the action of ejectment or trespass to try title is
local. (Eev. Stat, of Texas, p. 193, art. 1198, par. 13.) The
action is also local at common law. 1 Chitty's Pleading,
268 ; 1 Tidd's Practice, 427, 428.
The circuit court of one county can not try title to land in
another county. Railroad Co. v. Huff, 19 Ind. 444.
Stark v. Katcliff. 77
Brief for the Appellant.
The record must show the suit was commenced in the
county where the land is situated. Minkhart v. Hanklin, 19
111. 47.
The record shows that this suit was originally commenced
in Cooke county, and that this was not the proper county for
jurisdiction of a' suit concerning land in Wichita county. The
record of a judgment is only prima facie evidence of juris-
diction, and that presumption may be rebutted either by evi-
dence within or outside of the record. 2 Am. Leading Cases,
796-S09; 4 Wait's Actions and Defences, 189-193; Kerr v.
Kerr, 41 N. Y. 272.
If the record shows want of jurisdiction of the subject
matter, that is conclusive. Clark v. Thompson, 47 111. 27 ;
Baker v. Champlin, 12 Iowa, 204; 4 Wait's Actions and De-
fences, 195, 196.
Consent may confer jurisdiction of the person, but can not
confer jurisdiction of the subject matter, nor can the parties
waive the objection of want of jurisdiction of the subject
matter. Freeman on Judgments, sees. 116-120 ; Lehigh v.
Mason, 1 Scam. 249 ; Kimball v. Walker, 30 111. 497 ; Bond
v. Thompson, 39 id. 567 ; 7 Wait's Actions and Defences, 192,
193 ; Beach v. Nixon, 9 N. Y. 37.
Even a judgment by confession is void if the court had no
jurisdiction of the subject matter. Freeman on Judgments,
sec. 547.
A void judgment is a nullity. Neither the parties nor third
persons are affected by it. No right flows from it, and it may
be questioned in any court at any time. Camj)bell v. McCown,
41 111. 49 ; People v. Sturtevant, 9 N. Y. 266 ; Freeman on
Judgments, sees. 116-120.
When the objection is on account of a want of jurisdiction
of the subject matter, it can be raised at any time. 1 Wait's
Actions and Defences, 51; 6 id. 394; 7 id. 181-183; Conger
v. Railroad Co. 17 Wis. 477; Webb v. Goddard, 46 Maine,
505 ; Gould's Pleading, chap. 5, sees. 22-25.
78 Stark v. Eatcliff.
Brief for the Appellee. Opinion of the Court.
Mr. W. S. Everhart, and Messrs. Golden & Wilkin, for
the appellee :
This is not a suit upon the record of a foreign judgment,
but the transcript is introduced as evidence to show an evic-
tion, and the only question is, whether the District Court had
jurisdiction. Article 5, section 8, of the constitution of Texas,
provides: "The District Court shall have original jurisdic-
tion * * * 0f a]j su^s for tibial of title to land. "
In a collateral proceeding, likewise, it is immaterial how the
Texas court acquired jurisdiction, — however erroneously, —
so it had the power and authority to hear and determine the
matter submitted to it.
A plea to the jurisdiction of the court in an action of tres-
pass to try title, on the ground that the land lies without the
limits of the county, comes too late after a plea to the merits.
Ryan v. Jackson, 11 Texas, 391 ; Morris v. Runnells, 12 id.
177. See, also, Stark et ux. v. Burr, 56 id. 130.
It seems that in an action on a covenant of seizin, the bur-
den of proof lies upon the defendant in the first instance to
show paramount title in himself. Baker v. Hunt, 40 111. 264.
There was no variance. The description given in the dec-
laration was sufficient, and the other words in the deed may
be rejected as surplusage. The description given is of land
in a perfect square.
Mr. Justice Mulkey delivered the opinion of the Court :
On the 11th day of January, 1878, Simeon Stark, the ap-
pellant, for the expressed consideration of $5760, conveyed,
by general warranty deed, to Moses Eatcliff, the appellee,
twelve hundred acres of land in Wichita county, Texas. On
the 15th of October, 1881, one E. A. Gerard brought an action
in the District Court of Cooke county, Texas, against Eatcliff
and others, for the recovery of this land. Under the provi-
sions of the local law of Texas, Stark was notified, as war-
rantor of the title, to appear and defend, and upon satisfactory
Stark v. Eatcliff. 79
Opinion of the Court.
proof of the service of such notice the court entered a formal
order in the cause making him a party defendant to the suit.
Stark, however, failed to appear, and such proceedings were
had in the cause that Gerard recovered possession of the
premises, and Eatcliff was evicted therefrom. The latter
thereupon brought the present action against Stark to recover
damages for an alleged breach of the covenants in his deed
to Eatcliff. There was a trial of the cause upon the merits
in the circuit court of Edgar county, resulting in a judgment
for plaintiff for $5940, which was subsequently reduced by a
remittitur to $5555.88, and the judgment, thus reduced, was
affirmed by the Appellate Court for the Third District. By
the present appeal we are asked to review the judgment of
the Appellate Court.
It is claimed by appellant the circuit court made a num-
ber of erroneous rulings on the trial with respect to the ad-
mission of evidence, for which the Appellate Court should
have reversed the judgment. Whether this claim is well
founded or not presents the only question for determination.
The land in question is described in the declaration as
follows: "Twelve hundred and eighty acres (1280) of land
in Wichita, on the waters of Gilbert creek, and described as
follows : beginning at a stake in the south-west corner of
survey No. 1, made for the B. B. B. & C. E. E. Co., and 950
vers east from the north-west corner of a survey made in the
name of L. Wells, thence west 2688 varas to a rock marked
X, thence north 2688 varas to a rock marked — , thence east
2688 varas to a rock marked X, thence south to the begin-
ning, in the county of Wichita, and State of Texas." Upon
offering appellant's deed in evidence, it was objected the land
described in the deed is not the same that is mentioned and
set forth in the declaration, — or, in other words, that there
is a variance between the allegations and proofs ; but the
court overruled the objection and admitted the deed in evi-
dence, and this is assigned for error. Upon comparing the
SO Stark v. Katcliff.
Opinion of the Court.
two descriptions of the land it will be found the only ground
for this objection is, that the description in the deed contains,
immediately after the words "Gilbert creek," the additional
words : "Patented to W. W. Purinton on the 7th day of Novem-
ber, 1873 — Patent No. 404, volume No. 8." These additional
words clearly afforded no ground for excluding the deed.
The question before the court was whether the deed offered
in evidence tended to prove the issue. The declaration gives
a good description of the land, and so far as it goes it is in
exact accord with the description contained in the deed, and
the evidence offered therefore clearly supported the declara-
tion. The additional descriptive words in the deed are not
inconsistent or incompatible with the description contained
in the declaration, and we are aware of no principle which
requires a pleading, in every case when describing an instru-
ment or object, to specify all the means by which it might
properly be identified. In such case the requirements of
good pleading will be fully met if the marks or means of
identification specified distinguish such instrument or object
with reasonable certainty. That was done here. The gist
of the action in this case is the breach of the covenants in
the deed. Whether the land to which the covenants relate
is as fully described in the declaration as it might have been,
or even was in appellant's deed, is a matter of no consequence,
provided the declaration shows, with reasonable certainty, it
is the same land to which the covenants relate, — and, as just
stated, we think it does this.
The point, is also made that the court erred in admitting
in evidence, over the objections of appellant, the record of
the suit by Gerard, against Katcliff, in the District Court of
Texas, for the recovery of this land. This objection is also
based in part upon an alleged variance between the descrip-
tion of the land in that proceeding and the one given of it in
this. The supposed variance is of the same character of the
one we have just been considering, and what we have said
Stark v. Katcliff. 81
Opinion of the Court.
with respect to that is equally applicable to this, so that fur-
ther notice of this branch of the objection need not be taken.
The admission of the record, however, is resisted mainly
on the ground the District Court had no jurisdiction of the
subject matter of the suit, and hence it is claimed the whole
proceeding is a nullity, and the record of it is consequently
inadmissible as an instrument of evidence for the purpose
offered. By an express provision of the constitution of Texas,
the District Court is given original jurisdiction in all suits for
the trial of title to land. (Art. 5, sec. 8.) The suit in ques-
tion was one of that character, and it consequently follows
the court did have a general jurisdiction over the subject
matter of the suit, and the judgment rendered therein can
not therefore be treated as absolutely void. It is true, while
this general jurisdiction existed under the constitution, there
was a statute requiring suits for the recovery of land to be
brought in the county where the land lay ; yet this was matter
of defence, merely. We understand the rule to be, that if a
local action is brought against one in the wrong county, and
the court in which the action is brought has a general juris-
diction in that class of cases, the defendant must plead to
the jurisdiction, or otherwise take advantage of the irregu-
larity, in the court where the action is brought. He will not
be permitted, after having remained silent and permitted
judgment to go against him, to call in question its validity
for the first time in a mere collateral proceeding, as is sought
to be done here. The rule as here stated we understand to
*be fully recognized by the courts of Texas, to whose laws
we must look in determining the validity of this judgment.
Ryan v. Jackson, 11 Texas, 391 ; Morris v. Runnells, 12 id.
177 ; Stark et ux. v. Burr et al. 56 id. 130.
Perceiving no substantial error of law in the record, and
the facts having been settled conclusively against the appel-
lant, the judgment will be affirmed.
Judgment affirmed.
6—111 III.
82 Stumef et al. v. Osterhage.
Syllabtte.
Phillip Stumpf et al.
v.
Charles Osterhage
Filed at Mt. Vernon September 27, 1884.
1. Condition precedent — necessity of showing performance. A re-
lease of a person's interest in land inherited, to a certain other person, to
become effective upon a condition precedent to be performed by the releasee,
without proof of the performance of the condition, is inadmissible in evi-
dence to show a transfer of the releasor's title, in an action of ejectment.
2. Description of land in will or deed — of the particularity required.
In ejectment, the will of a person not shown to have had any title to the land
in dispute,, devising all his real estate generally, without any description, to
his sons, equally, is not admissible in evidence to show title, or for color of
title, under the Limitation law of 1839. Neither are deeds from persons in
whom no title is shown, which show no intention to convey the land in
dispute.
3. Limitation — color of title. A deed made by an administratrix of an
estate, though ineffectual to convey title for want of any in the intestate,
which properly describes the land in dispute, and purports to convey the
same, is admissible in evidence as color of title, under the Limitation law of
1839, and in the absence of evidence of bad faith it will be presumed it was
made and accepted in good faith.
4. Same — receipts as evidence of payment of taxes. In ejectment, to
recover fifty acres in a survey of four hundred and thirty-two acres, in which
the seven years' Limitation law is set up as a defence, tax receipts for the
taxes on a part of the survey, without showing what part, are not sufficient
of themselves, unexplained, to prove the payment of taxes; but when coupled
with the tax books, showing what land was assessed to the person so paying,
and his testimony showing his payment of all the taxes, they are sufficient.
5. Same — parol evidence as to payment of taxes. It is competent to
prove by parol on what land taxes have been in fact paid, and thus supple-'
ment or contradict the evidence of the written receipts for taxes.
6. Same — evidence to disprove payment of taxes. To rebut the proof
of the payment of taxes for seven successive years upon a particular pari of
a tract of over four hundred acres, which is described, the court allowed the
other party to prove payment of taxes about the same time on one hundred
and twenty acres of the whole tract, and admitted in evidence, over objec-
tion, the record of a judgment for taxes against one hundred and twenty acres
of land assessed as the property of another person: Held, that the court
erred in admitting the evidence, as it did not show it was the same land.
Stumpf et al. v. Osterhage. 83
Statement of the case.
7. Evidence — parol partition — admissions of parties in interest. Where
a parol partition of a tract of land is relied on as having been made many-
years ago, and the boundary between the several parts is brought into dis-
pute, the declarations of one of the parties to the division, while still an
owner of his part, as to the boundary line of his claim, being in disparage-
ment of his title, is competent evidence. So is evidence of the family repu-
tation as to deaths and residences of the members of such family.
Writ of Error to the Circuit Court of Monroe county ; the
Hon. Amos Watts, Judge, presiding.
This was an action of ejectment, brought by Charles Oster-
hage, against John Stumpf. A trial was had at the Septem-
ber term, 1873, and a verdict returned for the defendant. A
new trial was granted, and the cause again tried at the March
term, 1874, resulting in a verdict for the plaintiff, and a new
trial granted. At the September term, 1875, a trial was had,
and a verdict found for the plaintiff, and a new trial granted.
At the September term, 1876, another trial was had, result-
ing in a verdict for the plaintiff, on which judgment was ren-
dered at the special December term, 1876. This judgment
was reversed by this court, and the cause remanded. The
death of the defendant was suggested, and his heirs made
parties, and the declaration amended. At the March term,
1882, the cause was again tried, resulting in a verdict and
judgment for the plaintiff, to reverse which this writ of error
is brought.
It was agreed that the land in suit is part of survey 410,
claim 672, and that both parties claim title through Leonard
Harness, who left the whole claim, undivided, to his three
daughters, — Kate, Sally and Mary. The tract contained four
hundred and thirty-two acres. On the trial, plaintiff proved,
by Anna Clover, the marriage and death of Kate Harness,
and other matters relating to the family, such as heirship,
etc., and the division and subsequent occupancy of the land.
The defendants offered in evidence a certified copy of a
deed from Sally Harness, in the words following :
84 Stumpf et at. v. Osterhage.
Statement of the case.
"Know all men by these presents, that I, Sally Harness,
one of the heirs of Leonard Harness, deceased, have, for and
in consideration of a bond for a deed this day made by Jacob
Clover and William Clover, to me, of one hundred and thirty
acres of good, first-rate land, have relinquished all other
claim to the lands of the said deceased as an heir, and by
these presents, if the said bond is complied with on the part
of the signers, to-wit, Jacob Clover and William Clover, I will
have no other demand on the land, as aforementioned.
"In testimony whereof I have hereunto set my hand and
seal this 8th day of February, 1810.
Sally Harness. [Seal.] "
This instrument was acknowledged before a justice of the
peace. On objection by the plaintiff, the court refused to
admit it in evidence.
Defendant next offered in evidence a deed reading as fol-
lows:
"Know all men by these presents, that we, William Clover,
in my own right, and as guardian of Joseph Harness and
Polly Harness, do release and forever quitclaim to that tract
and messuage of land in the county of St. Clair, Illinois ter-
ritory, on which Jacob Clover now lives, to the said Jacob
Clover, in consideration of $400 to us in hand paid before
the delivery of this deed, which said tract contains four hun-
dred acres, more or less.
"Signed, sealed and delivered this 28th day of December,
1811. his
William x Clover, [Seal.]
mark,
his
William x Clover, [Seal.]
mark.
Guardian of Polly and Joseph Harness.
This was also acknowledged before a justice of the peace.
The court, on objection being made, refused to receive the
same.
Stumpf et al. v. Osterhage. 85
Statement of the case.
The defendant offered in evidence a copy of the will of
Jacob Clover, containing this devise, only :
"I do by these presents give, demise and bequeath unto
my wife, Catharine, all and singular my estate, real and per-
sonal, money, goods, chattels, rights and credits, of whatever
nature or kind soever that unto me belongeth, for and during
herlifetime, the same to be at her disposal and use, so long
as she shall live. Then, after the decease of my wife, Catha-
rine, it is my will that all the children of mine have my per-
sonal estate divided in equal portions among them. But it
is my will that my real estate go and be divided to all my
sons, only, in equal portions amongst them, for it is my will
that my daughters have no share in my lands, but that it be
divided, as above stated, in equal portions amongst them, all
my sons, as they may attain the age of twenty-one years of
age. I mean, and I wish it fully understood, that it is my
will and desire that my sons have my lands all divided in
equal portions amongst them as they come to the age of
twenty-one years, notwithstanding they may come to the . . .
of twenty-one before the decease of my wife, Catharine, — she,
my wife, still to have the use of the portions of land of my
younger sons until they arrive at the age of twenty-one, afore-
said.
"I do now publish this my testament and last will, hereby
revoking and amending all others. In testimony whereof I
have hereunto set my hand and seal this sixth day of March,
in the year of our Lord 1821."
The other material facts are stated in the opinion of the
court.
Messrs. Slate, Talbott & Michan, for the plaintiffs in
error.
Mr. Joseph W. Kickert, and Mr. Spencer Tompkins, for
the defendant in error.
86 Stumpf et al. v. Osterhage.
Opinion of the Court.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
This is ejectment for a certain tract of land, part of a larger
tract, described as claim No. 572, survey No. 410, in Monroe
county. Both parties concede that the claim belonged to
Leonard Harness in his lifetime, and that upon his death it
descended to his three daughters, — Kate, Sally and Mary.
There is proof tending to show that in 1810 they made be-
tween themselves a parol partition of the claim, whereby they
allotted and set apart the northern part to Rate, the middle
part to Sally, and the southern part to Mary, and that each
took actual and immediate possession of the part so allot-
ted and set apart to her. A small creek runs in a west-
erly course through the claim, entering its eastern boundary
twenty-eight chains and four links south of the north-east
corner, and passing out at a point on its western boundary
ten chains and eighteen links south of the north-west corner.
After entering the claim on the eastern boundary, the creek
bears north of west for a short distance, then turns sharply
to the south, and runs a little west of south for a short dis-
tance, then again turns and runs nearly west for a short dis-
tance, and then again turns and meanders in a northwesterly
direction to the west boundary line. The plaintiff below, and
defendant in error here, introduced evidence upon the trial
tending to prove that Sally married John Sheehan, and by
him had a daughter, Mary, after which she and her said hus-
band died intestate ; that Mary Sheehan married Eichard
Walton, by whom she had a son, W. E. Walton, after which
she and her said husband died intestate ; that W. E. Walton
conveyed the part of said claim so set apart to Sally Harness,
to Wilson & Cahow, by deed dated March 9, 1835 ; that Wil-
son & Cahow conveyed the same part to John D. Hagenkamp,
by deed dated December 30, 1854, and Hagenkamp conveyed
the same part to Charles Osterhage, the defendant in error,
Stumpf et al. v. Osterhage. 87
Opinion of the Court.
by deed dated February 22, 1871. The contention of the
defendant in error is, that he is seized in fee of the part so
allotted and set apart to Sally Harness, and that the north
line of that part extends to the point on the west line of the
claim where the creek crosses it, and extends thence up the
line of the creek in a southeasterly direction, following its
meanderings, until the point is reached where the line of the
creek is farthest south, and thence due east to the east line of
said claim. The contention of plaintiff in error is, that there
never was any legal partition of said claim, parol or other-
wise ; that he is seized in fee of the north 151 acres of said
tract, including 15 acres in the south-east corner of the north
166 acres of the claim, and that if not seized in fee thereof,
he has, at least, color of title thereto, made in good faith,
and has been in the continuous, actual possession thereof,
and paid all taxes legally assessed thereon, for seven succes-
sive years. The tract in controversy, it will thus be seen, is
so much of the north 166 acres of the claim as lies south of
the creek and the line running due east from the southernmost
point of its line to the east line of the claim, and includes,
according to the plat filed with the record, 50^^ acres.
We see no objection to the ruling of the court below in ex-
cluding the records of the deeds by Sally Harness to Jacob
Clover and William Clover ; by William Clover, in his own
right, and as guardian of Polly and Joseph Harness, to Jacob
Clover ; the will of Jacob Clover ; the deed by Elias Clover
and wife to John Clover, and the index record of a deed of
John Clover to Joseph Lawson. The deed by Sally Harness
assumes to convey nothing to anybody, — is but a release, to
become effective upon a condition precedent, and there was
no offer of any proof of the performance of such condition.
There being no sufficient evidence of any conveyance to Jacob
Clover of the interest of Sally Harness, and his will not pro-
fessing to dispose of this property specifically, it was prop-
erly excluded. And the same may be said of the other deeds
88 Stumpf et dl. v. Osterhage.
Opinion of the Court.
excluded. They do not profess to convey the property in dis-
pute, and no title being shown in the grantees, there can be
no presumption of even an intention to convey this property
by the use of the general language employed in the deeds.
The ruling, also, in admitting evidence of the declarations
of Kate Clover, as to where was the southern line of her claim,
we think unobjectionable. They were made when she was
still the owner of the property, and were in disparagement of
her title. So, also, the evidence of the family reputation as
to deaths and residences, etc., was properly admitted.
But we are of opinion that the court erred in excluding
evidence of the deed of Ann M. Agnew, administratrix of the
estate of Joseph' Lawson, deceased, to William H. Patterson.
Although ineffective as a conveyance of title, it was unques-
tionably color of title. (Chickering v. Fades, 26 111. 507;
Hardin v. Crate, 60 id. 215.) It includes the land in con-
troversy, and there is no evidence that it was made in bad
faith, and in the absence of this it is to be presumed that it
was made in good faith. McCagg v. Heacock, 34 111. 476 ;
Brooks v. Bruyn, 35 id. 392 ; Morrison v. Norman, 47 id. 477.
There were a number of tax receipts, showing payments
of taxes on land in claim No. 572, survey No. 410, by John
Stumpf, for the years 1861 to 1871, inclusive. These receipts,
in and of themselves, alone, are defective, in that they do not
show in what part of the claim is the land upon which the
taxes are paid ; and the receipt for the payment of the taxes
in 1865 was defective in the description of the property, and
it was also defective, as was likewise that for the year 1866,
and, it may be, that for one other year, in showing a payment
only on some 71 acres, instead of 155 acres. The tax books,
however, were admitted, as we think, properly, to show what
land was assessed against Stumpf for the year 1865, and there
was parol evidence showing on what land the taxes were, in
fact, paid. We have held it is competent to prove by parol
on what land taxes are, in fact, paid, and thus to supplement
Stumpf et al. v. Osterhage. 89
Opinion of the Court.
or contradict the evidence of the written receipts for taxes.
Rawson v. Fox, 65 111. 204; Milliken v. Marlin, 66 id. 13.
John Stumpf had died after the first and before the last
trial in this case. He testified as a witness upon the first
trial, and secondary evidence was given, upon the last trial,
of what he then testified. A. M. Schlierholz testified that
he was a reporter on the first trial, and that he heard John
Stumpf then testify, and recollected his testimony; that
Stumpf then testified : "I know the land," — i. e., the land in
controversy ; "bought it from George Schuermann ; took pos-
session of it in 1860 ; paid taxes, since then, on 151 acres, the
Hobbs piece excluded ; took possession of land in dispute in
1861, cut wood, cleared the land, and built a house. * * *
I paid the taxes for the 151 acres ; the land was never sold for
the taxes. * * * I paid taxes on the land since I bought it. "
Then Phillip Stumpf testified, after stating that he knew the
land in controversy, and that his father bought it in 1860:
"My father and brother and I have lived there since A. D.
1862." This, we think, was sufficient evidence of possession
and payment of taxes, unrebutted. But the court, for the
purpose of rebutting this evidence, admitted evidence, — over
the objection of plaintiffs in error, — of the payment of taxes,
during about the same time, on 120 acres of land in claim
572, survey 410, by John Hagenkamp, and also evidence of
a judgment against 120 acres of land in the same claim and
survey, assessed as the property of John Hagenkamp, for the
delinquent taxes of the year 1866. We have been unable to
find any evidence that identifies this 120 acres with the land
in dispute, and since there are more than 400 acres in claim
572, survey 410, it does not follow that this 120 acres must
have been the land in controversy. We are therefore of
opinion that the court, in admitting this evidence over the
objection of the plaintiffs in error, also erred.
For the errors indicated, the judgment below must be re-
versed and the cause remanded. T -, ,
Judgment reversed.
90 The People ex rel. v. Hanchett.
Syllabus.
The People ex rel. Marvin S. Robinson
v.
Seth F. Hanchett.
Filed at Springfield September 27, 1884.
1. Insolvent debtoe — arrest on ca. sa. — refusal of county court to
discharge — how far conclusive. The judgment of the county court, on the
application of a debtor to be discharged from imprisonment for debt, holding
that the case was not one in which he was entitled to a discharge on schedule
and assignment of his property, is final and conclusive upon all other courts
until reversed or otherwise annulled.
2. Same — retaining custody of debtor — return of writ, or its expiration.
Where the sheriff arrests one under a ca. sa., it is his duty to retain the
custody of the defendant until the judgment is satisfied, or the defendant is
otherwise legally discharged, without reference to what becomes of the writ,
or even whether it remains in force, or has expired by lapse of time. It is
not necessary to renew the writ to make the continued imprisonment legal.
3. A writ of ca. sa., like other executions, is made returnable by law within
ninety days after its date, yet the imprisonment of the debtor does not end
with its return or expiration.
4. Same — giving bond for appearance at a further day — waiver as to
time of continuance. The provision in section 8 of the act relating to insol-
vents, that the county court, on an application for a discharge, may continue
the hearing from time to time, "not exceeding thirty days," being for the
benefit of the debtor may be waived by him, and is waived by his consent,
express or implied, to a continuance for a longer time; and such court will
not thereby lose jurisdiction, and his bond for his appearance on the day set
for hearing will not be rendered invalid.
5. Same — enlargement of debtor on giving bond, whether an escape.
Where an insolvent debtor is by the county court admitted to bail pending
an application for a discharge, as authorized by the statute, his enlargement
under his bond does not amount to an escape, voluntary or negligent, so as
to prevent him from being again imprisoned for the same debt.
6. So where an insolvent debtor voluntarily enters into bond for his ap-
pearance before the county court at the time appointed for the hearing of his
application to be discharged, even though the hearing is continued more than
thirty days, by his consent, he will be in the custody of the law and under
the control of the court on his appearance on the day set for the hearing, and
that the court, on denying his application, may legally order him to be again
taken into custody by the sheriff, and his imprisonment under such order
will be as legal as his first arrest.
The People ex rel. v. Hanchett. 91
Brief for the Kelator.
7. Same — voluntary escape — whether a discharge from imprisonment.
The ancient rule that a debtor in execution, by a voluntary escape became
discharged both from imprisonment and the debt, leaving the creditor to look
to the sheriff alone for his debt, is no longer in force, and upon such escape
he may be lawfully re-arrested and imprisoned.
8. Same — remanding to custody of officer without process. Where a
debtor has been legally arrested by a sheriff under a ca. sa. running in the
name of the People, and is enlarged on bond for his appearance on the day
set for the hearing of his application for a discharge, the court, on refusing
a discharge, may order him back into the officer's custody without process in
the name of the People, and this may be verbally done.
This was a petition for a writ of habeas corpus filed in this
court, for the discharge of Marvin S. Kobinson from impris-
onment under a capias ad satisfaciendum. The facts neces-
sary to an understanding of the case appear in the opinion
of the court.
Mr. Eobert Hervey, and Messrs. Stuart & Beattie, for
the relator :
The ca. sa. after ninety days was dead, and the order of
the county court could not revive the same. Fawkes v. Da-
vidson, 8 Leigh, 555 ; Eev. Stat. chap. 77, sec. 8.
When the sheriff permitted the relator to depart his cus-
tody, on July 13, under the order of the county court, that
was a voluntary escape, and he could not be re- arrested in
the same suit. Escapes are of two kinds — voluntary, when
the sheriff and process leave the defendant ; or negligent,
when without fault of the officer the defendant leaves. Riley
v. Whittaker, 49 N. H. 148 ; Butler v. Washburn, 25 id. 258 ;
Clark v. Cleveland, 6 Hill, 349.
Upon a negligent escape the defendant can be re-arrested,
but upon a voluntary escape by act or mistake of the sheriff
he can not. Cases above cited, and Bush v. Pettibone, 5 Barb.
276.
The county court had no authority to continue the case
exceeding thirty days. Bev. Stat. chap. 72, sec. 8.
92 The People ex rel. v. Hanchett.
Opinion of the Court.
The order of the county court for the re-arrest was void as
process, because it did not run in the name of the People.
Leighton v. Hall, 31 111. 108 ; Sidwell v. Schumacher, 99 id.
433.
Mr. Justice Walker delivered the opinion of the Court :
This was a petition for a writ of habeas corpus, presented to
this court for the purpose of obtaining the discharge of peti-
tioner from imprisonment under a capias ad satisfaciendum,
issued out of the Superior Court of Cook county. It appears
that one Blumenthal, at the January term, 1883, of that
court, recovered a judgment against petitioner for the sum of
$800, and costs. The plaintiff in that judgment, on the 13th
day of July, following, sued out the ca. sa. under which peti-
tioner was arrested. He, on the same day, filed an applica-
tion to the county court of Cook county, under the Insolvent
Debtor's law, to obtain his discharge under its provisions.
The county court thereupon, after inquiring of the parties if
it would be satisfactory to them to set the case for hearing on
the 17th day of the next September, and neither party object-
ing, that date was fixed for the hearing. The court also
ordered that petitioner be released from custody on his enter-
ing into bond for his appearance on the day set for trial,
which he did, and the sheriff permitted him to go at large.
On the day set for trial, petitioner appeared in the county
court, and on a hearing, that court dismissed the petition,
and petitioner appealed to the circuit court of Cook county,
but on the 18th day of December, 1883, the appeal was dis-
missed, for failing to prosecute the appeal. At the time when
the county court dismissed the petition, on the 17th day of
September, an order was entered admitting petitioner to bail
until the 17th day of September, 1883. It is alleged in this
petition that the sheriff, on the 13th day of July, 1883, re-
turned the writ of ca. sa. to the clerk's office from which it
The People ex rel. v. Hanchett. 93
Opinion of the Court.
issued, indorsed that petitioner had been arrested, and had
been released by his giving bond for his appearance, and the
writ remained in the office of the clerk of the Superior Court
from the 13th day of July, 1883, until the 1st day of March,
1884, when it was withdrawn by the sheriff, without leave of
the court, for the purpose of re-arresting petitioner. Applica-
tion was made to the circuit court, and a writ of habeas coipus
was issued and returned, but the application was dismissed
after the court had announced its refusal to release petitioner.
Another writ of habeas corpus was sued out of the Superior
Court of Cook county, and the return shows it was pending
when this writ was issued, and after it was issued, on the 5th
day of June, an order was entered in the Superior Court,
which recites that the court had, on the 15th day of May,
1884, decided to enter an order remanding petitioner to the
custody of the sheriff, but had suspended the entry of the
order until that date, and the order recites that the petitioner
is not so remanded, and the petition for the writ of habeas
corpus was dismissed. During the pendency of the applica-
tion for a discharge of petitioner under the writs of habeas
corpus, he was at large under recognizance, and he was not
in the custody of the sheriff when this writ was served on
him. But respondent waives these objections, and argues
the case on the merits. We shall therefore proceed to their
consideration.
Inasmuch as the county court held that this was not a case
in which a debtor is entitled to be discharged on a schedule
and assignment of his property, we must regard that judg-
ment as conclusive until reversed or otherwise annulled.
When the sheriff makes an arrest under a ca. sa., the
defendant becomes the prisoner of the sheriff, and it is the
duty of the sheriff to retain the custody of the defendant until
the judgment is satisfied or the defendant is otherwise duly
discharged from custody, — and this, too, without reference
to what may become of the writ, or whether it remains in force
94 The People ex rel. v. Hanchett.
Opinion of the Court.
or has become functus officio. If the legality of the impris-
onment depended on the life of the writ, it would become
necessary to obtain a new writ at the expiration of the life of
the first writ. Such a practice, it is believed, has never
obtained in this State, nor does the statute contemplate such
a practice. The 4th section of the chapter entitled "Judg-
ments and Executions," gives an execution against the goods,
chattels, lands and tenements (and the body) of the defendant,
when authorized by law ; and the 8th section of the same act
makes executions, and writs of venditio rei exponas, return-
able in ninety days after their date. It therefore follows that
a ca. sa. must be returnable within that time, and yet the
imprisonment does not end with the return, or the expiration
of the life of the writ.
Petitioner then being legally in execution and imprison-
ment, he had the right to be taken before the county court on
his giving the required notice, under the 3d section of chap-
ter 72 of the Revised Statutes of 1874 ; and it was, by the 4th
section, the duty of the sheriff to convey him before the judge
of the county court at the appointed time, and the creditor at
whose instance he was arrested had the right to contest his
right to be discharged, which he successfully did in this case.
The sheriff undeniably had the custody of petitioner before
and at the time of producing him in the county court, and
he remained in custody until he gave bond for his appearance
at the time fixed for trial, and when he surrendered himself
at that time he thereby returned to the custody of the sheriff.
The 8th section of the act authorizes the county court to
permit him to give such bond, and provides that it shall con-
tain a provision that he will surrender himself to the officer
in whose custody he was when it was given. The bond and
his return to such custody are expressly provided for by that
section, and it is impossible to hold that there was any kind
of escape when he was enlarged under the bond. That was
done in strict conformity to the requirements of the statute.
The People ex rel. v. Hanchett. 95
Opinion of the Court.
It would be unreasonable to hold that a compliance with the
statute could produce an escape. A strict compliance with
the statute can never be construed into an escape, either
voluntary or negligent.
It is, however, urged, that the 8th section having provided
that "the court may continue any hearing from time to time,
not exceeding thirty days at any one time, and may remand
the debtor into the custody of the officer, or allow him to give
bond for his appearance" at the time fixed for the hearing,
the law was violated by adjourning the hearing for more than
sixty days ; that the order of adjournment, and the bond,
were illegal and void ; that the court thereby lost all juris-
diction over the subject matter and the person of petitioner,
and as he was enlarged under a void bond, it amounted to a
voluntary escape, and having so escaped he could not be
again imprisoned for the same debt, and hence he is entitled
to his discharge from custody. There are to this proposition
several answers. In the first place, it appears by the return
that at the time the hearing in the county court was continued
for more than thirty days, the court inquired of the parties
if the day to which the case was continued would be satisfac-
tory to them, and no objection was interposed. This unde-
niably amounted to consent. Even if no such question had
been asked and petitioner had not objected, it would have
amounted to a waiver, — and there can be no doubt that he
could waive the requirement of the statute by express or im-
plied consent. The provision of the statute was adopted for
the benefit of the debtor, and he has most clearly the right
to waive the benefit which he did in this case, and the court
did not thereby lose jurisdiction either of the subject matter
or the person, and he became a prisoner in the custody of
the law and under the control of the court when he appeared,
according to the condition of his bond, on the day set for the
hearing; and when the court refused to discharge him on
the hearing of his application, and ordered him into the cus-
96 The People ex rel. v. Hanchett.
Opinion of the Court.
tocly of the sheriff, his imprisonment was as legal and valid
as when he was first arrested, because the entire proceeding
was in conformity to and in compliance with the statute.
But if it were conceded that by enlarging petitioner under
the bond it amounted to an escape, it by no means follows
that he could not be again arrested. Anciently it was held
that by a voluntary escape the debtor became discharged
both from the imprisonment and the debt, and the creditor
could look alone to the sheriff for his debt ; but the doctrine
was not of long continuance, as it was, soon after its an-
nouncement, overruled. The present doctrine is well stated
in the case of Carthrae v. Clarke, 5 Leigh, 268. That was
an action on a prison bounds bond. The defence was that
the sheriff had voluntarily permitted the debtor to escape,
and had re-arrested him, and- then taken the bond in suit.
It was there contended that the re-arrest was not legal, and
he was not legally imprisoned when he executed the bond,
and that it was therefore void. In answer to this position the
court said : "It is said in 2 Bacon's Abridgment, 'Escape/
C, p. 515, that it was formerly held if the sheriff suffered a
prisoner in execution to make a voluntary escape, the pris-
oner was, in such case, absolutely discharged from the cred-
itor, and that the right of action was entirely transferred
against the sheriff, who, by means of such escape, became a
debtor ex delicto, — for which Arundel v. Wytham, Leo. 73, and
the case of Sheriff of Essex, Hob. 202, are cited. The con-
sequence of that doctrine was, that the creditor was put
completely in the power of the sheriff, and the fault of that
officer had the singular effect of releasing the debtor from
the claim of the creditor. The principle was soon after re-
pudiated by the courts of England. The case of Trevillian
v. Lord Roberts, is reported in Eolle's Abr. 902, pi. 8, 11
Viner's Abr. 'Execution,' v. a. pi. 8, p. 26 : 'If A be in exe-
cution at the suit of B, and escape with the assent of the sheriff,
and after, the sheriff retakes him and keeps him in prison, he
The People ex rel. v. Hanchett. 97
Opinion of the Court.
shall be in execution to B, because, though B may bring an
action against the sheriff for the voluntary escape, yet it is
at his election, for the party in execution shall not, by his
own wrong, put B to his action against the sheriff against
his will, and it may be that the sheriff is not able to give him
recompense,' — and it is then said that the Sheriff of Essex
case, in Hobart, is not law. It establishes the proposition
that in case of a voluntary escape, and recapture by the sheriff,
and detention by him of the prisoner, he shall be in execution
to the creditor. It is not necessary that the creditor should
express his assent to his being in execution to him, nor by
any order or direction, either oral or in writing, charge him
in execution, for according to the case 'he shall be in execu-
tion to B.' It establishes the proposition that it is in the
election of the creditor to bring an action against the sheriff
for the voluntary escape, and if he elects to bring such action
he thereby manifests his intention not to consider the debtor
as being in execution to him. It shows that if the creditor
does not bring such action, the debtor is his true prisoner
of course, and without any further action on his part. It
gives the best reasons why this result should take place.
The debtor shall not, by his misconduct, compel the creditor
to look to the sheriff as his debtor, whether the creditor will
or no ; and besides, the sheriff may be unable to make him
recompense." The court held the bond legal and valid.
To the same effect is Fawkes v. Davidson, 8 Leigh, 555, and
the doctrine of Carthrae v. Clarke is reaffirmed. And see
Dole v. Moulton, 2 Johns. 205, and Lansing v. Fleet, 2 id. 2.
These cases are to the point on that question. The cases
referred to in the brief for petitioner are not applicable, as
the facts are not similar to those in this case.
It is objected that the order of the county court remanding
petitioner to the custody of the sheriff did not run in the
name of the People, when the constitution requires all process
to so run. The order was not process to arrest petitioner.
„ 7—111 III.
98 Mings v. The People ex rel.
Syllabus.
He had been arrested, and was in custody under legal and
competent process, and no other or further process was re-
quired. The practice has never obtained in this jurisdiction
to issue process, or even an order of record, for the purpose
of bringing a prisoner confined in jail into court. The prac-
tice is for the court to verbally order the sheriff to bring a
prisoner into court, and remand him by a similar order ; and
it has never occurred to the most technical criminal lawyer
to insist that the prisoner was released because the order was
verbal, and not in writing, and running in the name of the
People. Under the insolvent laws the county court has as
ample power to have an imprisoned debtor, on his applica-
tion for a discharge, brought into court by the sheriff, and to
so remand him, as has the circuit court to so control prison-
ers charged with crime.
Having carefully considered all the questions presented, we
are of opinion that petitioner was properly and legally impris-
oned, and as he did not show sufficient ground for a dis-
charge, he was properly remanded to jail from whence he
was brought.
Prisoner remanded.
William H. Mings
v.
The People ex rel. Laura E. McCune.
Filed at Springfield September 27, 1884.
Bastakdy — maintainable by a non-resident. Under our statute a non-
resident woman may maintain a bastardy proceeding against the putative
father of her child, in the courts of this State.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of
Edgar county; the Hon. J. W. Wilkin, Judge, presiding.
Mings v. The People ex rel. 99
Briefs of Counsel. Opinion of the Court.
Messrs. Sellar & Dole, and Messrs. Hunt & Dyas, for
the appellant, contended a non-resident of this State having
an illegitimate child can not prosecute one in this State as
the father of such child, — citing sees. 10, 13 and 16 of the
Bastardy act ; Eggleston v. Battles, 26 Vt. 548 ; Graham v.
Monsergh, 22 id. 543; Grant v. Barry, 9 Allen, 459; State
v. Helmer, 21 Iowa, 370.
The primary object of our Bastardy law is the protection
of the public against the support of the bastard child. The
act being highly penal, should receive a strict construction.
Mr. Kobert L. MoKinlay, and Mr. Joseph C. Ficklin, for
the appellee :
A prosecution under the Bastardy act is not limited to
residents of this State. Kolbe v. People, 85 111. 336 ; Duffies
v. State, 7 Wis. 762.
The very obvious intent of the Bastardy act is to enforce
the duty which the putative father is under to support his
child. (State v. Jager, 19 Wis. 235.) This court has held
that the object of the Bastardy act is not the imposition of
a penalty for an immoral act, but merely to compel the puta-
tive father to contribute to the support of his illegitimate child.
Mr. Justice Craig delivered the opinion of the Court :
This was a bastardy proceeding instituted in the name of
the People, on the complaint of Laura E. McCune, against
William H. Mings, the appellant. On a trial of the issue
before a jury, in the circuit court, the jury found the defend-
ant was the father of the child, as charged in the complaint,
and the court rendered judgment on the verdict. On appeal
to the Appellate Court the judgment was affirmed.
But one question is presented for our decision by this
appeal. In the circuit court the defendant entered a motion
to dismiss, for the reason that the prosecutrix and her child
100 Neff v. Smyth.
Syllabus.
were non-residents of the State, and for that reason a pro-
ceeding of this character could not be maintained here. The
court overruled the motion, and this decision is relied upon
as error. The same question arose in Kolbe v. The People,
85 111. 336, and we there held that a non-resident woman
might, under our statute, prosecute the putative father in the
courts of this State, for bastardy. That decision is conclu-
sive of the question presented by this record, and we perceive
no good ground for overruling it.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Peter Neff
v.
Kobert Smyth.
Filed at Mt. Vernon September 27, 1884.
1. Tax title — of the judgment record — convening order. The fact that
a tax judgment record of the county court contains no formal convening order,
is not a fatal objection to the validity of a tax title growing out of a sale under,
the judgment, if such record book shows anywhere on its face that the county
judge was present, that business of a judicial character was passed upon, that
the court adjourned and reassembled, and that a record was kept of the pro-
ceedings of the court, and the judgment is signed by the judge.
2. Same — judgment, as showing the years for which taxes are due. As
to "back taxes," merely, where no forfeiture has taken place, the lands are
only liable for interest on the back tax itself, and such "back taxes" are re-
quired to be brought forward 'in separate columns designating the year or
years," as provided in section 277 of the Eevenue law; but with respect to
"forfeited taxes" the statute does not so require, but directs that these taxes,
when ascertained in any given year, by adding together the back tax, interest,
penalty and printer's fees, as provided in section 129, shall be added to the
tax of the current year, and the aggregate amount so added together shall be
collected in like manner as the taxes on other real property for that year are
collected.
3. In this case, the application for judgment recorded in the judgment
record book, and forming part of the judgment, gave, in separate columns,
Neff u. Smyth. 101
Syllabus.
each tax of the current year, then "forfeited tax," of $1138.13, then costs,
fifty-one cents, then total amount due, $1274.92, opposite each lot; and in
the caption to the application the taxes were stated to be for "the year 1878,
and for forfeited back taxes for the year A. D. 1877 and previous years:"
Held, that in respect of designating the "year or years" for which the taxes
were due, the judgment was sufficient.
4. Same — party appearing and contesting application for judgment,
concluded by the judgment. Where a tax-payer appears and contests an
application for judgment against his lots, for several years, as to certain taxes
alleged to have been illegal, and his objections are sustained, and judgment
rendered only for the taxes not complained of, under which his lots are sold,
he will be estopped by the judgment from urging against the validity of the
tax title any other objection to the legality of any of the other taxes embraced
in the judgment.
5. Where there is jurisdiction of the person and subject matter, a judg-
ment is binding upon all parties and privies to it until it is reversed in a
regular proceeding for that purpose, and its validity can not be inquired into
in any collateral proceeding. If any ground of defence is omitted to be pre-
sented before judgment, the defendant will be precluded from afterwards
taking advantage thereof. This applies equally to a judgment against land
for taxes as to any other.
6. Same— precept — as showing for what years taxes are due. A pre-
cept for the sale of lands for the taxes of 1878 and back forfeited taxes, was
made with a column in which to specify the year or years for which the taxes
were due, which was wholly blank, there being no reference to any year ex-
cept the year 1878, in the head or commencement, in these words: "Tax
sale and redemption record, Alexander county, Illinois — Sale of taxes, 1878,"
and then proceeding: "Record of lands and lots against which judgment was
rendered at the May term, 1879, of the county court of Alexander county, "
etc. : Held, a substantial compliance with the statute as a statement of the
year or years for which the tax was due, the back forfeited taxes being prop-
erly treated as the taxes due for the year 1878.
7. Same — sufficiency of clerk's certificate to precept. A certificate of the
county clerk to a precept, "that the foregoing record of lands and town lots
delinquent for the taxes for the year 1878, and forfeited taxes for previous
years, is a true and perfect copy of the judgment record on file in my office,
and that the foregoing judgment and orders of court are true and perfect
copies of the original orders and judgment of the county court of said Alex-
ander county, as made and entered of record," etc., is sufficiently in compli-
ance with the statute, without formally stating that the record made by the
clerk is correct.
8. Same — variance between judgment and precept. A judgment against
real estate for taxes appeared to be for the tax of 1878, and forfeited and
back taxes for the year 1877 and previous years, but the precept was silent
102 Neff v. Smyth.
Brief for the Appellant.
as to the year or years for which the taxes were due, except the year 1878.
There were no back taxes proper, but only the current year's taxes of 1878,
and "forfeited taxes" of previous years, due on the lots of the party objecting
to the sale: Held, there was no substantial variance, as the back forfeited
taxes might be considered as embraced in the description of taxes of 1878.
9. Attorney — evidence of a retainer, to object to judgment for taxes.
"Where a committee of an association, of which a lot owner is a member,
employs counsel to defeat the collection of certain taxes claimed to be illegal,
that being the object of such association, &nd such counsel appears before
the county court, puts in objections for all persons of the association as to
such tax, and such owner, in pursuance of his written obligation, pays the
counsel a certain per cent on all taxes defeated, this is evidence sufficient to
show that such counsel had authority to appear for him in the county court
and resist the application for judgment against his lots.
Appeal from the Circuit Court of Alexander county; the
Hon. David J. Baker, Judge, presiding.
Messrs. Green & Gilbert, for the appellant :
Appellee having appeared and filed objections, the judg-
ment of the county court is conclusive until reversed. Grace-
land Cemetery Co. v. People, 92 111. 620 ; People v. Smith* 94
id. 229 ; Belleville Nail Co. v. People, 98 id. 403 ; Gage v.
Bailey, 102 id. 11; Karnes v. People, 73 id. 275; Blackwell
on Tax Titles, 221 ; Freeman on Judgments, (2d ed.) sec. 135.
By failing, on his appearance, to object to a particular tax,
he admits it is legal, and is estopped by the judgment from
disputing such admission. Hoivley v. Griswold, 42 Barb. 18 ;
Bank v. Hazard, 30 N. Y. 226; Baker v. Pratt, 15 111. 568;
Wetland Canal Co. v. Hathaway, 8 Wend. 483 ; Degell v. Odell,
3 Hill, 219 ; Snodgrass v. Ricketts, 13 Cal. 362 ; Niven v. Bel-
knap, 2 Johns. 572 ; Strong v. Ellsworth, 26 Vt. 366 ; Her-
mann on Estoppels, sees. 328, 331.
Sections 129 and 229 of the Bevenue law have sole refer-
ence to "forfeited taxes," and sections 226 and 227 alone
relate to simple back taxes. The forfeited taxes are to be
added to the current taxes, and are all due for that year, and
may be treated as the current year's taxes due. The back
Neff v. Smyth. 103
Brief for the Appellee.
taxes, when no forfeiture has taken place, are required to be
brought forward in separate columns designating the year or
years.
Even if the advertisement, collector's report recorded in
judgment, and precept, were not in the form prescribed by
statute, they were sufficient as against appellee. Karnes v.
People, 73 111. 279.
The objections now urged were all cured by section 191 of
the Kevenue act. Chiniquy v. People, 78 111. 577 ; Beers v.
People, 83 id. 493 ; Fisher v. People, 84 id. 496 ; Buck v. Peo-
ple, 78 id. 566.
Even if the precept was irregular and imperfect, it was pro-
cess under the seal of the court, and contained all the informa-
tion necessary to its proper execution. It is like an execution.
Siviggart v. Harber, 4 Scam. 371 ; Durham v. Heaton, 20 111.
264; Newman v. WilUtts, 60 id. 519; Morgan v. Evans, 72 id.
580 ; Chestnut v. Marsh, 12 id. 173 ; Hill v. Figleg, 25 id. 15S.
No placita is necessary when it appears the judge was pres-
ent, hearing objections, etc. Dukes v. Bowleg, 24111. 210.
The judgment and precept are each in substantial compli-
ance with the statute. Kevenue act, sec. 194.
Mr. John M. Lansden, and Mr. Angus Leek, for the ap-
pellee :
The judgment was void for want of a placita or convening
order of the court. Young v. Thompson, 14 111. 380 ; Law-
rence v. Fort, 20 id. 338; Dukes v. Bowleg, 24 id. 210.
The tax judgment record did not show the year or years
for which the taxes were due. Eevenue act, sees. 182, 184,
188, 194, 216, 277; Mann v. People, 102 111. 346.
That a specification of the year or years for which the
taxes are due, is necessary, see Morgan v. Camp, 16 111. 175;
Prickett v. Hartsock, 15 id. 279 ; Marsh v. Chestnut, 14 id. 223.
The judgment embraced certain illegal taxes, which vitiated
the whole tax, and the judgment itself. Cooley on Taxation,
104 Neff v. Smyth.
Opinion of the Court.
295; Burroughs on Taxation, 301 ; Blackwell on Tax Titles,
192 ; Tread well v. Patterson, 51 Cal. 637 ; Bucknell v. Story,
36 id. 67; Gliddon v. Chase, 35 Maine, 90; Thayer v. Mayo,
34 id. 139 ; Grosvenor v. Cheney, 48 id. 363 ; Boy den v. Moore,
5 Mass. 365 ; Pickett v. Breckenridge, 22 Pick. 297 ; Cheney
v. Stevens, 97 Mass. 77 ; McLaughlin v. Thompson, 55 111. 249.
The alleged appearance of appellee in the county court
could bind him only as to the particular tax to which objec-
tions were filed.
Res judicata and estoppel apply only to matters put in
issue. 2 Bouvier's Die. 465; 7 Bob. Prac. 159; Bigelow on
Estoppel, 27 ; Hanna v. Read, 102 111. 596 ; Miller v. McMan-
nis, 57 id. 158; Eastman v. Cooper, 15 Pick. 279; Outram v.
Moreivood, 3 East, 346 ; Burlen v. Shannon, 3 Gray, 392 ;
Arnold v. Arnold, 17 Pick. 7; Davis v. Spooner, 7 id. 147;
Sawyer v. Woodbury, 7 Gray, 502.
The precept was null and void. It did not show the year
or years for which the taxes were due, nor was it properly cer-
tified, as required by section 194 of the Be venue law. There
was a fatal variance between it and the judgment. Bevenue
act, sec. 194.
The precept can not be aided by the clerk's certificate.
Young v. Thompson, 14 111. 380 ; Merrill v. Sivartz, 39 id. 108 ;
Sidwell v. Schumacher, 99 id. 426.
The precept was not certified as required by section 194.
Again, there is a fatal variance between the judgment and
precept. Pitkin v. Yaw, 13 111. 251 ; Eppinger v. Kirby, 23
id. 521.
Mr. Justice' Sheldon delivered the opinion of the Court :
This was an action of ejectment by Neff, against Smyth,
for the recovery of lots 12 and 13, block 2, in Cairo, Illinois,
where judgment was for the defendant, and the plaintiff ap-
pealed.
Neff v. Smyth. 105
Opinion of the Court.
Plaintiff's claim of title was under a tax deed for the lots,
dated June 18, 1881, founded upon a tax sale of them, made
June 17, 1879, by virtue of a precept issued June 16, 1879,
upon a tax judgment against the lots, rendered May 28, 1879,
for taxes for the year 1878, and forfeited taxes of the year
1877 and prior years.
It appears that the lots were delinquent for the taxes of
1873, and judgment was given therefor at the May term,
1874. The lots were again delinquent for the taxes of 1874
and forfeited tax of 1873, and judgment was given therefor at
the August term, 1875. The lots were again delinquent for
the taxes of 1875, and forfeited taxes of 1874 and the pre-
vious year, and judgment was rendered therefor at the June
term, 1876. The lots were again delinquent for the taxes of
1876, and forfeited taxes of 1875 and previous years. When
application was made for judgment for such taxes at the June
term, 1877, the record shows that the defendant appeared in
court, by his attorneys, and filed objections, questioning the
legality of a portion of the taxes for which judgment was
asked, viz., the "County Eailroad Interest Tax," and "City
Railroad Interest Tax," of 1876, which objections were sus-
tained by the court, and judgment only given for the residue
of the taxes not objected to. The lots were again delinquent
for the taxes of 1877, and forfeited taxes of 1876 and previous
years. When application was made for judgment therefor, at
the May term, 1878, the record shows that defendant again
appeared in court, by his attorneys, and filed objections,
questioning the legality of a portion of the taxes for which
judgment was asked, viz., the county and city "Registered
Railroad Bond Interest Taxes" of 1877, which objections
were sustained by the court, and judgment only given for
the remainder of the taxes not objected to. The lots were
again delinquent for the taxes of 1878, and forfeited taxes
of 1877 and previous years, and when application for judg-
ment therefor was made at the May term, 1879, defendant
106 Neff v. Smyth.
Opinion of the Court.
again appeared in court, by his attorneys, and filed objec-
tions, questioning the legality of a portion of the taxes for
which judgment was asked, viz., the city and county "Bond
Interest Taxes" of 1878, which objections were sustained by
the court, and the said judgment of May 28, 1879, under
which the lots were sold to plaintiff, only rendered for the
rest of the taxes not objected to.
When the lots were offered for sale under the judgment of
May 28, 1879, defendant, as well as plaintiff, were both per-
sonally present, and when plaintiff bid on the first lot offered,
defendant promised to pay the taxes if plaintiff would with-
draw his bid and the sheriff would adjourn the sale for half
an hour, to enable the defendant to go and get the money and
return, which proposition was assented to ; but after waiting
an hour, and defendant failing to return, the lots were struck
off and sold to plaintiff for the accumulated taxes of six years,
amounting to $2549.84.
It is objected to the tax judgment of May 28, 1879, that it
was void because the tax judgment record does not contain a
formal placita or convening order of the court, and Young v.
Thompson, 14 111. 380, Lawrence v. Fast, 20 id. 338, and Dukes
v. Rowley, 24 id. 210, are cited in support of the objection.
In the case first named the defect was, that it did not appear,
from the judgment record, "at what term, or in what year,
the judgment was rendered." Nothing is there said about a
convening order. In the second case a convening order is
spoken of, the court saying: "This record does not show
what is sometimes called the convening order of the court.
It does not show by whom the court was held, nor even in
what court the judgment was pronounced. It merely shows
the entry of the judgment order. There it begins and there
it stops." In Dukes v. Roivley, the question was as to the
sufficiency of the convening order, it not stating that the,
clerk and sheriff were present, and the court said : "It shows
that the judge was present holding the term, and we find that
Neff v. Smyth. 107
Opinion of the Court.
the record does show that business was done by the court, and
that a record of its proceedings was kept. This was suffi-
cient," etc. We regard the latter case as going to sustain
the present judgment in the particular in question. True,
there does not appear in the tax judgment record book, here,
any convening order, but such record book does show the
county judge was present ; that business of a judicial char-
acter was passed upon; that the court adjourned and re-
assembled, and that a record was kept of the proceedings of
the court. If this so appeared, we think it enough, although
it did not thus appear by any formal convening order. The
tax judgment record book in evidence showed that the judg-
ment in this case was rendered on May 28, 1879, in the county
court of Alexander county, at the May term thereof, 1879,
by Eeuben S. Yocum, county judge, the judgment being thus
signed by him. The judgment does not appear to have the
defects which, in the cases cited, were pointed out as existing
in the judgments there.
It may be remarked further, in favor of the present judg-
ment, that the cases cited had reference to the circuit court,
and that the requirements of the statute of 1845, under which
they were decided, were different from the law in force in
1879. Under the latter law it is the county court which has
jurisdiction of proceedings for the collection of taxes, and by
sections 5 and 6, chapter 37, of the Kevised Statutes of 1874,
it is declared that such proceedings shall be considered as
probate matters, and be cognizable at the probate term of
the county court, and that such court, for the transaction of
probate business, shall be always open.
Another objection to the judgment is, that the tax judg-
ment record did not show the year or years for which the
taxes were due. Appellee's counsel refer to the several sec-
tions, 182, 184, 188, 194, 216 and 277, of the Eevenue law,
which, in proceedings for the collection of taxes, require the
"year or years" for which taxes are due, to be specified, and
108 Neff v. Smyth.
Opinion of the Court.
claim that these sections make it clear that the designation in
the judgment record of the year or years for which the taxes
are claimed to be due, is necessary to the validity of the judg-
ment, and of the tax title founded thereon. Appellant's coun-
sel contend there is to be a distinction taken between "back
taxes" and "forfeited taxes," and that the provisions requiring
the year or years for which taxes are due, to be specified, relate
only to the current year's tax and "back taxes," and not to
"forfeited taxes." We incline to adopt this view. Sections
129 and 229 of the Eevenue law appear to have sole reference
to "forfeited taxes," and sections 276 and 277 to relate alone
to simple back taxes, where there has been no forfeiture. As
to "back taxes," merely, where no forfeiture has taken place,
the lands are only liable for interest on the back tax itself,
and are required to be brought forward "in separate columns
designating the year or years," as provided in section 277.
But with respect to "forfeited taxes" the statute does not so
require, but directs that this tax, when ascertained in any
given year, by adding together the back tax, interest, penalty
and printer's fees, as provided in section 129, shall be added
to the tax of the current year, and the aggregate amount so
added together shall be collected in like manner as the tax
on other real property for that year may be collected. Thus
the forfeited tax of the preceding year, with a year's interest,
penalty and printer's fees, is added to the tax of the current
year, and is merged in it by a judgment, and there becomes
a new forfeiture, if the property be forfeited to the State.
There is no provision for keeping each forfeited tax alive, or
each year's interest, penalty and printer's fees separate and
distinct, in separate columns. This distinction between "back
taxes" and "forfeited taxes" seems sustained by Pike v. The
People, 80 111. 82, where we said : "The objection that the
advertisement and delinquent lists as to the forfeited lands
do not state the year for which the lands were forfeited, is
answered by reference to the statute, which does not require
Neff v. Smyth. 109
Opinion of the Court.
it." The collector's application for judgment, as recorded
in the judgment record book, and forming part of the judg-
ment, gave in separate columns each tax of the current year,
then "forfeited tax," $1138.13, then costs, fifty-one cents,
then total amount due, $1274.92, opposite each of said lots;
and in the caption to the application the taxes are stated to
be for "the year A. D. 1878, and forfeited back taxes for the
year A. D. 1877 and previous years. " In the respect of desig-
nation of the "year or years" for which the taxes were due,
we hold the judgment sufficient.
A further objection taken to the tax judgment is, that it
embraced certain illegal taxes, which vitiated the whole tax,
and therefore the judgment itself. The alleged illegal tax
is a county tax of about seventy-nine cents on the hundred
dollars, levied for the year 1873, without any vote of the
people, and for general county purposes, which was carried
forward from year to year, and formed a part of the total tax
for which judgment was rendered and for which the lots were
sold, the legal limit of the county tax being seventy-five cents
on the hundred dollars, without a vote of the people ; and it
is claimed that the clerk, in carrying forward the forfeited
taxes for the successive years, wrongfully calculated interest
on the back tax, interest, penalties and costs, instead of on
the back tax alone. We consider that appellee is precluded
from making this objection, because of his appearance in the
county court and contesting on the merits the application for
judgment.
It is denied that there was authority on the part of counsel
to appear in behalf of appellee and make objections to the
tax, as the record purports they did do. It is said there was
an organization called a "Tax-Payers' Association;" that a
committee of the association employed counsel to defeat the
collection of the city and county bond interest taxes, — that
being the object of the association, — and that such counsel
put in as objectors the names of all persons who were delin-
110 Neff v. Smyth.
Opinion of the Court.
quent as to this interest tax, without regard to having, or not,
authority to do so ; that it was in this way the objections
came to be filed in this case without any personal employ-
ment by appellee, of counsel. It appears that appellee was
a member of the association ; knew the association had em-
ployed counsel to defeat the payment of this bond interest
tax on behalf of all the members, and signed a written agree-
ment obligating himself, individually, to pay the counsel ten
per cent on the amount of the tax defeated ; and when in
each year, 1S77, 1878 and 1879, the tax was defeated, upon
presentation to him, by the counsel, of the county clerk's cer-
tificate that objections had been filed and sustained by the
court, and the tax defeated, appellee paid such counsel for
their services the ten per cent agreed on. This must be taken
as evidence sufficient of the authority of counsel to appear
and file objections.
It is then claimed, that as the objections filed in 1877,
1878 and 1879 were confined exclusively to the city and
county bond interest tax, and none of the objections now
urged by appellee were embraced within those objections, the
appearance of appellee in the county court could bind him
only as to that particular tax to which objections were filed,
the contention being that appellee is not concluded by the
judgment of the county court from urging as a defence to
the present action any objection which was not specifically
put in issue by him in the application for judgment against
his lots for the taxes for which they were afterwards sold.
The general doctrine surely is, that where there is jurisdic-
tion of the person and subject matter, a judgment is binding
upon all parties and privies to it until it is reversed in a
regular proceeding for that purpose ; that its validity can
not be inquired into in any collateral proceeding ; that all
defences should be made before judgment, and if there should
be the omission of any ground of defence, the defendant will
be precluded from afterward taking advantage thereof. And
Neff v. Smyth. Ill
Opinion of the Court.
we have held that where there has been an appearance and
defence on the merits in a tax sale proceeding, a tax judg-
ment should have the same conclusive effect as any other
judgment. (Graceland Cemetery Co. v. The People, 92 111.
619; Gage v. Bailey, 102 id. 11; Karnes v. The People, 73
id. 274.) In the application for judgment against these lots
for unpaid taxes, appellee appeared, as we find, by his counsel,
and filed objections alone to the city and county bond interest
tax, which objections were sustained, and judgment rendered
for the amount of the residue of the taxes claimed to be due.
Any objections which there were to any of the other taxes
should have been presented at that time — appellant should
then have made his entire defence. Having omitted to do
so, he is precluded from now questioning the amount of the
taxes that was due. The judgment is conclusive of the
amount due. The objection now made that some other por-
tion of the taxes was also illegal, and for which there should
not have been judgment, goes but to the amount of the
judgment, and questions the judgment as being for a larger
amount than it should have been.
The idea that appellee appeared and defended only as to
the part of the taxes to which he filed objections, and that as
to the rest of the taxes he is to be considered as not having
made appearance and defence, and is at liberty now to ques-
tion their being due, is not to be admitted. There is no legal
principle for its support. (See Freeman on Judgments, sees.
249, 135.) Filing the objections which appellee did, was a
tacit admission that there were no other objections. In
Karnes v. The People, supra, speaking upon this subject, it
was said : "When objections are made, the trial is only upon
the points thus raised, the presumption being that all else is
admitted to be correct, and free from objection. * * *
It would be a perversion of justice to permit a party to raise
specific objections and contest the rendition of judgment,
tacitly admitting the taxes were due, by not denying the fact,
112 Neff v. Smyth.
Opinion of the Court.
and then to raise that question for the first time in this court. "
If that might be said on appeal, as there, it may with the
greater force be said in this collateral proceeding.
Objection is taken to the precept as being null and void,
in that it did not show the year or years for which the taxes
were due ; that it was not properly certified, as required by
section 194 of the Kevenue law; and that there was a fatal
variance between it and the judgment. The provision upon
this subject in section 194 is: "The county clerk shall, be-
fore the day of sale, make a record of the lands and lots
against which judgment is rendered, which shall set forth
the name of the owner, (if known,) the description of the
property, the total amount of judgment on each tract or lot,
and the year or years for which the same is due, in the same
descriptive order as said property may be set forth in the
judgment book, and shall attach thereto a copy of the order
of the court, and his certificate that said record is correct ; " —
and this is made the process on which to sell. Looking at
the record or precept, we see that the book (such it is denom-
inated in section 200) was made with a column in which to
specify the year or years for which the taxes were due, but
it is wholly blank, and throughout the whole record or pre-
cept there is no reference to any year or years, except the
year 1878, in the head or commencement, in these words:
"Tax sale and redemption record, Alexander county, Illinois —
Sale of taxes, 1878, " and then proceeding : "Kecord of lands
and lots against which judgment was rendered at the May
term, 1879, of the county court of Alexander county," etc.
We think this is to be read as a record of lands against which
judgment was rendered at the May term, 1879, for the taxes
of 1878. If we may look at the clerk's certificate to the pre-
cept, that expressly states such record to be one "of lands
and town lots delinquent for the taxes for the year 1878, and
forfeited taxes of previous years, " etc.
Neff v. Smyth. 113
Opinion of the Court.
But it is said the certificate is no part of the precept.
However that may be, it reasonably appears, aside from the
certificate, as above stated, that the judgment was for the
taxes of 1878, and we are disposed to regard that as a sub-
stantial compliance with the statute as to the statement of
the "year or years" for which the tax is due. There were the
taxes for the year 1878 due, and under provisions of the
statute before referred to, "the forfeited taxes" were required
to be added to the tax of the current year, and the aggregate
amount so added together was to be placed on the tax books,
and collected in like manner as the tax on other real property,
thus making, we think, this aggregate amount of the taxes of
the year 1878 and of the forfeited taxes of previous years, —
all, practically, taxes of 1878, within the purview of the
requirement we are considering. The certificate is, "that
the foregoing record of lands and town lots delinquent for
the taxes for the year 1878, and forfeited taxes of previous
years, is a true and perfect copy of the judgment record on
file in my office, and that the foregoing judgment and orders
of court are true and perfect copies of the original orders and
judgment of the county court of said Alexander county, as
made and entered of record, " etc. Although the certificate
does not, in words, say that the record made by the clerk is
correct, the facts stated show it to be correct ; and if, as the
clerk certifies, "the foregoing judgment and orders of court
are true and perfect copies of the original orders and judg-
ment," then he has attached a copy of the order of the court,
thus making the certificate sufficiently in compliance with
the statute.
It is further objected that there was a fatal variance be-
tween the judgment and precept, in the respect that the
judgment appeared to be for the tax of 1878, and' forfeited
and back taxes for the year A. D. 1877 and previous years,
but that the precept is silent as to the year or years for which
the taxes were due, except as has been before named. In
8—111 III.
114 C, B. & Q. E. E. Co. v. Hans.
Syllabus.
respect of appellee's lots there were no "back taxes" proper,
but only the current year's taxes of 1878, and "forfeited
taxes" of previous years. According to what has been said,
there would not appear to be any substantial variance in
respect of the statement of the years for which forfeited taxes
were due, as they might be considered as embraced within
the description of taxes of 1878.
We are of opinion that the objections made against the tax
deed were not sufficient to invalidate it, and that it should
have been held good.
The judgment will be reversed and the cause remanded.
Judgment reversed.
Scholfield, Ch. J. : I do not concur in this opinion.
Dickey and Mulkey, JJ., also dissent,,
The Chicago, Burlington and Quincy Eailroad Company
v.
Peter Hans.
Filed at Springfield September 27, 1884.
1. Railroad — statute construed as to duty to fence track at stations.
The statute of this State requiring railway companies to fence each side of
their roads, to prevent cattle from getting on the same, except at public road
crossings and within cities and villages laid out into lots and blocks, and
making them liable for injury to stock for a failure to do so, is not intended
to apply to public stations or depot grounds, although such stations or depot
grounds may not be within the limits of a village, town or city, or at a high-
way crossing. But side-tracks not at stations or depots, and such parts of
side-tracks as do not constitute a part of the depot yard, may well be held to
be within the statute.
2. Same — duty to provide means of access to depots. It is made the
duty of railway companies to establish depots, and so operate their roads as to
afford the public reasonable safety and dispatch in the transaction of business;
and to effect this, it is necessary that they should, at all reasonable times,
provide a ready and convenient means of access to their stations and depots.
C, B. & Q. B. R. Co. v. Hans. 115
Statement of the Case.
3. Former decision — overruled in part, and explained. The reason-
ing of the court in the case of Chicago, Milwaukee and St. Paul R. R. Co.
v. Dumser, 109 111. 402, in so far as it intimates that the company was derelict
in failing to fence its road at its depot grounds, being not necessary to the
decision of the case, is not to be treated as authority.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of Adams
county; the Hon. John H. Williams, Judge, presiding.
The cow of appellee, running at large, strayed upon the rail-
road track of appellant in the night time, and was injured by
a passing locomotive and train. The railroad track was duly
fenced on both sides, except at a station called Marblehead.
Here there was a fence all along one side of the track. On
the other side was a railroad depot and passenger house,
and about twelve feet north of the depot was a coal house.
Between the depot and the coal house there was no fence,
otherwise that side of the track was fenced fully. The space
between the depot and coal house was occupied by a platform
of timbers, which furnished the only way for passengers and
freight to reach the platform adjoining the track and extend-
ing along the front of the depot and coal house. Through
this open space between the coal house and the depot the
cow strayed upon the track and was injured. The only neg-
ligence charged against the railroad company is its omission
to have its railroad track fenced at this point. This depot
was within about one hundred and fifty yards of a public high-
way, and there was an open space leading from the public
highway to the depot, which was the only mode of approach
or egress for freight or passengers going to or from this depot.
The depot was near to but not in any village, city or incor-
porated town, and the depot was not at the crossing of any
public road or highway.
At the close of the evidence the defendant below (appel-
lant) asked the court, among other things, to charge the jury
116 C, B. & Q. R. E. Co. v. Hans.
Brief for the Appellant.
that "the defendant is not bound to fence its depot grounds,
and is not liable for failing to do so, and defendant is not
required at all times to employ watchmen or guards to pre-
vent stock from straying upon its track at its depot grounds."
The court refused to so instruct the jury, but charged if the
defendant company "had failed to keep and maintain suitable
and sufficient fences to prevent cattle from getting on said
railroad track, and because of such failure plaintiff's cow got
upon said railroad and was struck and injured, etc., then the
jury should find the defendant guilty," etc. ■
By the statute "every railroad corporation" is required to
"erect and maintain fences on both sides of its road, or so
much of it as is open for use, suitable and sufficient to pre-
vent cattle * * * from getting on such railroad, except
at the crossings of public roads and highways, and within
such portion of cities and incorporated towns and villages as
are or may hereafter be laid out and platted into lots and
blocks, * * * and to construct and maintain at all road
crossings * * * cattle-guards, * * .» * and when such
fences and cattle-guards are not made, * * * such rail-
road corporations" are made liable "for all damages which
may be done by the agents, engines or cars of such corpora-
tion to such cattle * * * thereon, " etc.
Mr. J. F. Carrott, for the appellant:
A recovery for stock killed or injured at a place where the
track is not required to be fenced, can not be had without
proof of negligence. Railroad Co. v. Bull, 72 111. 537 ; Rail-
road Co. v. Brown, 23 id. 95.
A railroad company, under its general duty to fence, is not
required to inclose grounds about its stations which are re-
quired to be kept open for public convenience. Pierce on
Kailroads, 421 ; 1 Thompson on Negligence, 522.
Even a private road leading to a public station, and used
by the public, may be regarded as a public highway within
C, B. & Q. K. K. Co. v. Hans. 117
Brief for the Appellee.
the exception of the statute. Walton v. Railroad Co. 67 Mo.
56 ; Morris v. Railroad Co. 58 id. 78.
Under similar statutes it has been held that no liability
exists for not fencing at public roads, stations, etc. Lloyd
v. Railroad Co. 49 Mo. 190 ; Swearingen v. Railroad Co. 64
id. 73 ; Railroad Co. v. Kinney, 8 Ind. 402 ; Davis v. Rail-
road Co. 26 Iowa, 549 ; Railroad Co. v. Beatty, 36 id. 19 ;
Railroad Co. v. Campbell, 47 Mich. 265 ; Railway Co. v. Lull,
28 id. 515.
The proper test is whether the place is a public one. Such
are not within the spirit of the statute. 1 Thompson on Neg-
ligence, 519, 521; Railroad Co. v. Chapin, 66 111. 504; Rail-
road Co. v. Spangler, 71 id. 578; Railroad Co. v. Parker, 29
Ind. 471.
As to the duty of railway companies to provide a reason-
able means of access to their stations for the public, see Eev.
Stat. chap. 114, sec. 20; 1 Eediield on Eailways, p. 244, sec.
68; Railroad Co. v. Wilson, 17 111. 123.
The duty of carriage includes giving secure access to and
egress from the conveyance. Wharton on Negligence, sec.
652 ; Railroad Co. v. Riley, 39 Ind. 586 ; McDonald v. Rail-
road Co. 26 Iowa, 124.
Messrs. Sibley, Carter & Govert, for the appellee :
The statute imperatively required the appellant to fence
both sides of its track, and contains no exception as to sta-
tions or depots out of cities and villages laid out into lots
and blocks. Laws 1879, p. 224, sec. 1.
The supposed hardship or unreasonableness of the law is
not a judicial question, but one to be addressed to the law
making power only. Comrs. of Highways v. Comrs. of High-
ways, 100 111. 631.
The cases cited by appellant were decided under different
statutes, not like the one now in force, and are not authority
in the construction of the act of 1879.
118 C., B. & Q. E. R. Co. v. Hans.
Opinion of the Court.
Mr. Justice Dickey delivered the opinion of the Court :
This case turns upon the construction of our statute. Look-
ing at the evil sought to be remedied and the means prescribed
by the statute, we can not believe that the legislature intended
by that act to require that all stations and depots should be
fenced in, except such as might stand in public roads, or
within the limits of some part of a village, town or city
which had been platted into lots and blocks. The statute,
by its terms, relates to the road or tracks of the railroad.
It ought not to be construed so as to embrace that which is
not embraced in the statute, and depots and stations are
surely not embraced in its terms. True, there is a road or
track at the station, but the main feature of the place is not
the track. The statute no doubt may embrace tracks other
than the main track. Side-tracks not at stations or depots,
and such parts of side-tracks as do not constitute part of
the depot yard, may well be held to be within the statute ;
but the absurdity of holding this station to be required to
be fenced is too obvious. The post-office is at this station,
also a cooper shop and some other buildings. If this statute
be held to embrace the station, it would leave passengers
under the necessity of climbing over the fence to get to the
cars, for the statute requires gates or bars only at farm
crossings.
While this question has never come directly in judgment
in this court, so far as we are advised, like statutes have been
construed by other courts. It has been held in such cases
that the railroad company is not bound to fence up such part
of its depot grounds as are required to be open for the con-
venience of the public in the use of the road. Swearingen v.
Missouri, Kansas and Topeka R. R. Co. 64 Mo. 73 ; Lloyd v.
Pacific R. R. Co. 49 id. 199; Morris v. St Louis R. R. Co.
58 id. 78 ; Davis v. Burlington R. R. Co. 26 Iowa, 529 ; J. M.
and I. R, R, Co, v. Beatty, 36 Ind. 19; Chicago and Grand
C, B. & Q. K. R. Co. v. Hans. 119
Opinion of the Court.
Trunk By. Co. v. Campbell, 47 Mich. 265 ; Flint Ry. Co. v.
Lull, 28 id. 515; 1 Eedfield on Bailways, 469; Thompson
on Negligence, p. 519, sec. 24.
It is the duty of a railway company to establish depots,
etc., and so operate its road as to afford the public reason-
able safety and dispatch in the transaction of business. To
effect this, and to accommodate those traveling its road or
transacting business with the company, it is necessary that it
should at all reasonable times provide a ready and convenient
means of access to its stations and depots. To require those
places to be fenced would cause delay and inconvenience to
the public, and detract from the public character of railways.
As said by the court in Chicago and Grand Trunk Ry. Co. v.
Campbell, 47 Mich. 265: "The regulation for the fencing of
the track is established for the public protection and con-
venience, and a case that incommodes the public is by impli-
cation excepted. It would be wholly unreasonable to obstruct
with gates the passage of teams to and from the railroad
warehouse, in order that cattle might safely go at large."
We hold, therefore, that the railroad company was not
bound to fence in its road at a station. The contrary doc-
trine is not established by the case of Chicago, Mihvaukee
and St. Paid R. R. Co. v. Dumser, 109 111. 402. The judg-
ment in that case was properly affirmed, as the railway com-
pany had failed to fence its road at the point where the animal
got upon its track and was killed, that point being some dis-
tance from its depot or station. It was not necessary in that
case to decide that the company was derelict in duty in fail-
ing to fence its track at the depot, where it received and dis-
charged passengers and freights.
The judgment of the Appellate Court is therefore reversed
and the cause remanded, with directions to reverse the judg-
ment of the circuit court and remand the cause.
Judgment reversed.
120 Tarble v. The People.
Syllabus. Statement of the case.
Mr. Justice Scott : I dissent in toto from this opinion,
and for an expression of my views on the questions involved
reference is made to the opinion of this court in Chicago,
Milwaukee and St. Paul R. R. Co. v. Dicmser, 109 111. 402.
The same section of the statute was construed in that case,
and was directly involved. It is so stated in the opinion of
the court, and no one expressed any dissent from that state-
ment.
Mr. Justice Walker : I hold that the statute is so plain
that it admits of no construction making any exceptions from
its specific requirements.
William Tarble
v.
The People op the State of Illinois.
Filed at Ottawa September 27, 1884.
1. Bill of exceptions — its requisites. An exception to the ruling of
the court as to the admission of evidence must appear from the bill of excep-
tions. It is not sufficient that the clerk of the trial court recites there was
such exception taken, and this court can not act on such recital.
2. This court can not pass upon the facts of a criminal case, and decide
whether a new trial should have been awarded, where the bill of exceptions
fails to state that all the evidence is embodied therein.
Writ of Error to the Circuit Court of Kane county ; the
Hon. C. W. Upton, Judge, presiding.
This was an indictment against the plaintiff in error for
robbery, tried at the February term, 1882, of the circuit
court of Kane county. The trial resulted in the conviction
and sentence of the defendant to six years' imprisonment in
the penitentiary.
Tarble v. The People. . 121
Statement of the case.
The first point made is, that the evidence was not suffi-
cient to justify the verdict. The prosecution examined James
Cook and Dr. Blood, (the latter the person who was alleged to
have been robbed,) and rested. The witness Cook testified,
in substance, that he knew the defendant ; that he (witness)
was in the St. Cloud saloon, in Aurora, on February 4, 1882,
at about eight o'clock in the evening; that Dr. Blood came
in and took a drink of whisky, and shortly after fell to the
floor, insensible ; that one Meggison, the keeper of the saloon,
asked witness to take Blood out on the street and walk him
around, and sober him up ; that he led Blood up the stairs
and out upon the street, and over to Boach's livery stable, to
let him sober off there ; that he went to the door of the stable,
and found the door fastened, when he started back to where
he left the doctor,, and saw Tarble bending over the doctor,
and saw him take the doctor's pin out of his scarf ; that he
asked Tarble what he was doing, when Tarble said, "that is
all right, — you just keep your mouth shut;" that he then
took Blood to the Fitch House, where he left him, after
taking him up-stairs ; that he afterwards saw the watch in
the possession of Tarble, and told him (Tarble) that the
"nigger" at the Fitch House would come out on him, and
that Tarble then gave him a dollar to give to the "nigger,"
to keep him still, or his "mouth shut." On cross-examina-
tion the witness said he saw Tarble slip the pin out of Blood's
scarf, and was about twelve feet away ; that this was about
half-past eight in the evening ; that there was no moon, and
it was quite dark ; that he gave no alarm when Tarble took
the pin, and said nothing to any one about the matter ; that
when he took Blood to the Fitch House he was afraid of
Tarble, and that he took the dollar that Tarble gave him to
purchase silence.
Alfred Blood testified that he went to the St. Cloud saloon
and took a drink of what he supposed to be whisky, and soon
after became unconscious ; that the first recollection he had
122 Tarble v. The People.
Statement of the case.
was of a man standing over him taking something from his
bosom, or scarf ; that he. put his hand up to keep the man
away, and found his pin was gone ; that he thought the man
was a smooth-faced man, and that the prisoner resembled
him ; that when he came to himself he was at the Fitch
House, in bed, and his watch, worth $30, and diamond pin,
worth $100, were gone; that he would not swear that Tarble
was the man who took his pin out of the scarf, and that he
made no noise or outcry when the person took the pin.
The defendant called three witnesses, who testified that
Tarble was present with them in a back room of the St. Cloud
saloon from half-past seven until nine o'clock in the evening
of the alleged robbery, but they were not positive he was there
all the time.
The defendant testified that he went to the St. Cloud saloon
between six and seven o'clock in the evening, and remained
there until nine o'clock; that Frank CJancey called him out,
and he went with him to Evans' and got some oysters ; that
he did not see Blood on that evening, and did not take any
of the articles or property mentioned in the indictment, from
him. On cross-examination he testified that he had been
arrested before, and had been in the penitentiary for bur-
glary. This evidence was objected to, but the court over-
ruled the objection.
The People then called 0. S. Clayton, M. E. Bruce, John
Wolfert, Fred Long, Chris Zimmer, A. G. McDole, A. Bus-
bee and Isaac Martin, all of whom testified that they were
acquainted with the defendant's reputation for truth and
veracity in the community in which he resided, and that it
was bad, and that they would not believe him under oath.
Bruce said : "I would not believe him under oath. He robbed
my store two years ago." Wolfert testified that defendant's
reputation was very bad. "I know it is bad, because he stole
my goods." All this was objected to by the defendant, but
the court overruled the objection.
Taeble v. The People. 123
Opinion of the Court.
No instructions are given in the record.
The errors assigned are : First, the court erred in giving
improper instructions for the People ; second, the court erred
in refusing proper instructions asked by the plaintiff in error ;
third, the court erred in excluding proper evidence offered by
plaintiff in error; fourth, the court erred in admitting im-
proper testimony offered by the People ; fifth, the verdict is
against the law and the evidence.
Mr. W. E. S. Hunter, for the plaintiff in error.
Mr. James McCartney, Attorney General, for the People.
Per Curiam : This is a writ of error, upon which it is sought
to reverse a conviction of plaintiff in error upon an indictment
for robbery. There is no question of law saved in the record
in such manner as to bring the same before this court. The
bill of exceptions fails to state that all the evidence is em-
b.odied therein. In such case we can not undertake to pass
upon the facts. The bill of exceptions shows that several
objections were taken to the admission of evidence in the
progress of the trial, and that some of these objections were
overruled by the court ; but the bill of exceptions does not
show that exceptions were taken to such rulings. The ab-
stract is found to be incorrect in this regard. In the recitals
made by the clerk it is said, that as to some of the rulings
of the court defendant did except. This, as has often been
decided, is no part of the record, and we can not act upon
the same.
The judgment of conviction is therefore affirmed.
Judgment affirmed.
121 The People ex rel. v. Town of Bishop.
Syllabus.
The People ex rel. Springfield, Effingham and Southeastern
Eailroad Company, for use, etc.
v.
The Town of Bishop et al.
Filed at Mt. Vernon September 27, 1884.
1. Municipal aid to raidkoads — whether a vote thereon was prior to
the adoption of the separate prohibitory article. The separate article of
the constitution of 1870, prohibiting municipal aid to -railroads or private
corporations, took effect from and after its adoption by the people on July 2,
1870, which was at the moment the polls were closed and the voting ceased.
2. Where a township election was duly called, in pursuance of a statute,
in June, 1870, upon the question of a donation of $10,000 in aid of a railway
company, to be paid in bonds when the railroad should be completed to a
certain place, and the election was set for and held on July 2, 1870, the same
day the constitution and the separate article prohibiting municipal aid to rail-
roads or private corporations were submitted to the people, the election offi-
cers using, however, a separate ballot box, and both polls were closed at the
same time, about sun set, it was held, that it could not be said the vote for
the donation was had prior to the adoption of the article of the constitution
prohibiting such donations.
3. In determining whether the election in respect to the proposed muni-
cipal aid to the railroad, held under such circumstances, was or was not prior
in point of time to the adoption of the separate article prohibiting such aid,
the court declined to enter upon the inquiry as to the difference in time
between sun set at the particular locality where the municipal election was
held, and sun set at other voting places in the State west of that locality,
holding that the term "sun set," as used in the schedule to the constitution,
requiring the polls to be kept open on the day of the election in respect to
the adoption or rejection of that instrument and the separate article, until
that time, was not used in the precise, mathematical sense, but rather in a
more practical sense, requiring only a reasonable approximation to that time.
4. Municipal bonds — in aid of railroads — burden of proof. The bur-
den of proof rests upon parties claiming the right to issue municipal bonds
in aid of railroads or other private corporations, or to compel the issuing of
such bonds, or asserting the validity of such bonds issued for such purposes
since the adoption of the present constitution, to show affirmatively that they
were authorized by a vote of the municipality, under then existing laws, prior
to the adoption of the constitution.
The People ex rel. v. Town of Bishop. 125
Brief for the Appellant.
Appeal from the Circuit Court of Effingham county; the
Hon. Thomas S. Casey, Judge, presiding.
Mr. Lyman Trumbull, and Mr. John S. Cooper, for the ap-
pellant :
Municipal corporations are subject to the will of the legis-
lature, and can obtain no vested rights by virtue of a statute
prohibiting or limiting them as to the doing of an act, which
may not be subsequently taken away by a repeal or amend-
ment of such statute. Coles v. Madison County, Beecher's
Breese, 160; County Comrs. v. People, 11 111. 202; Harris v.
Board of Supervisors, 105 id. 445 ; Richland County v. Law-
rence County, 12 id. 1 ; Trustees of Schools v. Tatman, 13
id. 27 ; Gutzweller v. People, 14 id. 142 ; Holliday v. People,
5 Gilm. 214; Shaw v. Dennis, id. 405; Johnson v. Stark
County, 24 111. 75; State v. Railroad Co. 12 G. & J. 399;
Town of Guilford v. Supervisors, 13 N. Y. 143; People v.
Mayor, 4 Comst. 419; Darlington v. New York, 31 N. Y. 164;
Brewster v. Syracuse, 19 id. 116; Sedgwick County v. Bunker,
16 Kan. 498; People v. Plank Road Co. 27 Barb. 445.
As to the effect of the repeal of the Limitation act of 1877,
see Hewett v. Wilcox, 1 Mete. 154; Central Bank v. Empire
Stone Dressing Co. 26 Barb. 23 ; Washburn v. Franklin, 35
id. 599 ; Key v. Goodwin, 4 M. & P. 341 ; Butler v. Palmer,
1 Hill, 334 ; United States Mortgage Co. v. Gross, 93 111. 483 ;
Hyman v. Bayne, 83 id. 256 ; Welch v. Wadsworth, 30 Conn.
149 ; Hepburn v. Curts, 7 Watts, 300 ; Schenley v. Common-
wealth, 36 Pa. 29 ; Grimm v. Weiseuberg School District, 57
Pa. St. 433; People v. Seymour, 16 Cal. 332.
Did the separate article of the new constitution, prohibiting
municipal aid to railroads, adopted July 2, 1870, take effect
prior to the donation being voted to this railroad on the same
day ? On this point the following citations are made : Schall
v. Bowman, 62 111. 322; Louisville v. Savings Bank, 104 U. S.
469.
126 The People ex rel. v. Town of Bishop.
Briefs for the Appellees.
Mr. S. F. Gilmore, and Mr. K. C. Harrah, for the appellees :
The writ was properly denied, because of the bar of the
statute of May 29, 1877. People v. Town of Granville, 104
111. 285.
The action having been barred by the act of May 29, 1877,
in force at the time the liability of the township ceased, the
right of defence which the statute furnished was a vested right,
of which the township could not be deprived by subsequent
legislation. Cooley's Stat. Lim. chap. 11, sees. 365-369;
Wade on Ketroactive Laws, sec. 197; Sprecher v. Wakeley,
11 Wis. 442; State v. Lincoln, 17 id. 578; Davis v. Minor
et ux. 1 How. 183 ; Bragg' s Appeal, 43 Pa. St. 43 ; Gardner v.
Stephens, 1 Heisk. 280 ; Yancy v. Yancy, 5 id. 353 ; Roekport
v. Walden, 54 N. H. 167; Moore v. State, 43 N. J. L*. 203.
The donation having been voted for on the 2d day of July,
1870, simultaneously with the vote of the people in adopting
the present constitution, was not prior to the adoption of the
article prohibiting such municipalities from making dona-
tions to such corporations, and conferred no power upon the
municipality to issue, and no right upon the petitioner to
receive, the bonds. This article of the constitution went into
effect and became operative on the 2d day of July, 1870, and
all subscriptions or donations not authorized by a vote of the
municipality prior to that time are void. Schall v. Bowman,
62 111. 325 ; Jackson County v. Brash, 77 id. 59 ; Middleport
v. Mtna Life Ins. Co. 82 id. 562; Wright v. Bishop, 88 id.
302; Wade v. Walnut, 105 U. S. 1.
Mr. John C. White, and Mr. B. F. Kagay, also, for the
appellees :
Mandamus will not be awarded unless the petitioner shows
a clear legal right to have the thing sought by it done in the
maimer and by the persons sought to be coerced. People
v. Glann, 70 111. 232; People v. Lieb, 85 id. 484; People v.
The People ex rel. v. Town of Bishop. 127
Brief for the Appellees.
Klokke, 92 id. 134; People v. Village of Grotty, 93 id. 180;
Lavalle v. Soucy, 96 id. 467.
The burden was on the petitioner to show affirmatively that
the bonds were authorized by a vote pursuant to law, prior to
the adoption of the present constitution. Wright v. Bishop,
88 111. 303 ; Middleport v. Mtna Life Ins. Co. 82 id. 568 ;
People v. Jackson County, 92 id. 453.
The power in the town to make the donation never came
into existence. 1 Dillon on Mun. Corp. sec. 443 ; Private
Laws 1869, vol. 3, p. 198.
Before the condition of the vote was performed, and before
any interest in the proposed donation was vested in the rail-
road company, the alleged inchoate power of the town to make
the donation was extinguished. Cooley's Const. Lim. 440 ;
Merrill v. Sherburne, 1 N. H. 214 ; Town of Concord v. Savings
Bank, 92 U. S. 630.
The legislature could not, by the act of June 22, 1883,
take away from the town a defence then perfect, and vested
in the town by the operation of the Statute of Limitations.
Moore v. State, 43 N. J. 204; Cooley's Const. Lim. (5th ed.)
440, 445, 449, note 5 ; Naught v. O'Neal, Breese, 36 ; Hinch-
manv. Whetstone, 23 111. 189; Paullin v. Hall, 40 id. 277;
Chiles v. Davis, 58 id. 416 ; Kallenbach v. Dickinson, 100 id.
435.
The act of June 22, 1883, will not be construed to be retro-
active, and intended to take away from the town the defence
already vested under the act of 1877. If it had this intention
and effect, its operation would be unconstitutional, because
it imposed a debt for local purposes not consented to by the
town, to be paid by taxation. People v. Chicago, 51 111. 31 ;
Harvard v. St. Clair Drainage Co. id. 132 ; Dunnovan v. Green,
57 id. 69; Marshall v. Silliman, 61 id. 224; Railroad Co. v.
Sparta, 77 id. 509 ; Cooley's Const. Lim. (5th ed.) 285, 273,
note 4; Const. 1870, art. 9, sees. 9, 10.
128 The People ex rel. v. Town of Bishop.
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court :
On the 10th of March, 1869, an act of the General Assem-
bly of the State of Illinois, entitled "An act to incorporate
the Springfield, Effingham and Southeastern Eailroad Com-
pany," was approved and went into force and effect. In and
by that act it was provided, among other things, that coun-
ties, townships, cities or incorporated towns, on or near the
line of such railroad, might make subscriptions or donations
to the capital stock of such company, if they chose to do so,
in the manner provided in the act. The substance of the
several sections in relation to subscriptions and donations
is set forth in the petition so fully, that it appears what
authority municipalities had to make either subscriptions or
donations to the capital stock of the corporation, and what
formalities should be observed in making the same. It is
also set forth in the petition that after the act of March 10,
1869, went into force, and prior to the 2d of July, 1870, the
railroad company, in accordance with the act of incorpora-
tion, had located its road through the counties of Jasper and
Effingham, and through the town of Bishop, and that on the
2d of June, 1870, there was presented to the supervisors of
the town of Bishop a petition, signed by twenty-five legal
voters of the town, praying that an election be held in the
township on the 2d day of July, 1870, to decide whether the
township, under the provisions of the act of incorporation,
would make a donation of its bonds to the company in the
sum of $10,000, payable in twenty years, with ten per cent
interest per annum, payable annually, on the 2d of June in
each year, which sum it was proposed to donate to the rail-
road company, and deliver to such company its bonds for
such amount when its road should be built, and the cars run-
ning thereon, from the city of Effingham to the east line of
Effingham county. It is also alleged the petition was in due
form under the act and in conformity therewith, and that the
The People ex rel. v. Town of Bishop. 129
Opinion of the Court.
acting supervisor of the town gave thirty days' notice of the
time of holding such election, in conformity with the prayer
of said petition, and named the 2d day of July, 1870, as the
time of holding such election, and that the election would be
held at the place provided for holding general elections in the
township, and that on the 2d day of July, 1870, the election
was held at the place and time specified in the notice, and
that the same resulted as follows : for donation, forty-four
votes ; against donation, twenty-two votes. It is also alleged
that under some judicial proceeding the claim or right of the
railroad company to the donation alleged to have been voted
by the township, was directed to be sold by the receiver before
that time appointed by the court, to raise funds to aid in com-
pleting the road, and at the sale thereof Alfred P. Wright,
for whose use the suit is brought, became the purchaser ; and
that in the month of August, 1883, the railroad having been
built, and the cars running thereon, from the city of Effing-
ham to Newton, in Jasper county, and beyond, and over the
entire road, Alfred P. Wright, for himself, and in the name
of the railroad company, being authorized so to do, caused
a legal demand to be made on the supervisor and town
clerk of the town of Bishop to have issued and delivered to
the railroad company, or to Wright, the $10,000 in bonds
of the town, with coupons attached, in accordance with the
alleged vote. The supervisor and clerk of the town declined
to issue the bonds, and the prayer of the petition is for a
writ of mandamus to compel them to do so. The petition
contains oth%r matters, but it is not thought to be necessary
to an understanding of the questions discussed to state them.
The defendants made a general denial of the allegations of
the petition, and a stipulation was signed by the respective
counsel, by which it was agreed that all questions as to the
form of the pleadings should be waived, and that petitioner, on
the trial, might introduce any competent evidence to support
the allegations of the petition, to make out a case, and that
9—111 III.
130 The People ex rel. v. Town of Bishop.
Opinion of the Court.
respondent might introduce any competent evidence under
the general denial, and make all defences thereunder as if
the same were specially pleaded. The cause was submitted
to the court, on the pleadings and the evidence, and the court
found the issues for defendants, and dismissed the petition.
The relator brings the case to this court on appeal.
A number of defences are insisted upon, but as there is
one — if it is well taken — that is fatal to the relief sought, the
discussion of all other questions is rendered unnecessary. It
is, that the bonds claimed were not voted by the electors of
the town sought to be coerced, prior to the adoption of that
section of the constitution of the State entitled "Municipal
subscriptions to railroads or private corporations," which
took effect July 2, 1870, and which forbids any county, city
or township, or other municipal corporation, thereafter to
become a subscriber to the capital stock of any railroad or
private corporation, or to make donations to or loan its credit
in aid of any such corporation.
It is conceded this separate article of the constitution of
1870 took effect from and after its adoption, and that it was
adopted on the 2d day of July, 1870, that being the day on
which it, with the body of the constitution, was submitted to
the people for adoption or rejection. But a question arising
on the record, and which is presented for decision, is, whether
an election which took place on the same day with the voting
on the new constitution was annulled by that fact. This
exact question has not before arisen in this court, although
cases have been determined, which, if followed to*their logical
results, must have an important bearing on the question to
be decided. Previous decisions of this court have settled
definitely that the separate article of the constitution in rela-
tion to subscriptions and donations to the capital stock of
railroads or other private corporations, took effect from and
after its adoption, and that it was adopted on the 2d day of
July, 1870, the day on which it, with the body of the consti-
The People ex rel. v. Town of Bishop. 131
Opinion of the Court.
tution, was submitted to the people for adoption or rejection.
Schall v. Bowman, 62 111. 325; Wright v. Bishop, 88 id. 302;
Richards v. Donagho, 66 id. 73. It is also settled by the
previous decisions of this court, in accordance with the plain
meaning of the constitution, that there is now no authority,
since the adoption of the present constitution, in counties,
cities, towns or other municipalities, to make subscriptions
to the capital stock of railroad companies, or to make dona-
tion to or lend their credit in aid of such corporations, and
that the burden rests upon the party claiming the right to
issue them, or to compel the issuing of such bonds, or assert-
ing the validity of such bonds issued for such purposes since
the adoption of the present constitution, to show affirmatively
that they were authorized by a vote of the municipality,
under existing laws, prior to the adoption of the constitution.
Jackson County v. Brush, 77 111. 59 ; Middleport v. Mtna Life
Ins. Co. 82 id. 562 ; Wright v. Bishop, supra. In Wright v.
Bishop, it was held the clause of the constitution containing
the prohibition against municipal subscription or donation in
the aid of railroad companies and other private corporations,
took effect on the 2d of July, 1870, and that all such sub-
scriptions or donations not authorized by a vote of the muni-
cipality prior to that time, are void. Conceding, as may be
done, the words "prior to that time,'' as used in the opinion
of the court, simply mean prior to the adoption of the sepa-
rate article of the constitution, whenever that was, the inquiry
arises, was the donation in this case voted by the munici-
pality, under existing law, prior to the adoption of this article
of the constitution on the 2d day of July, 1870 ? The burden
of proving that fact, as has been seen, rests on the relator,
and unless it has been shown affirmatively, the relief sought
must be denied.
It becomes important, then, to inquire, when was this
article of the constitution adopted, and from what time shall
it be regarded as being in force ? Counsel suggest, and with
132 The People ex rel. v. Town op Bishop.
Opinion of the Court.
that view this court is inclined to concur, it seems clear this
article was not and could not be adopted until after the polls
closed at sun down on the day of the election. This view
finds support in the decision of this court in Crook v. The
People, 106 111. 237, where it was held the majority vote of
the people "For city organization," was the adoption of the
general law, and was a perfected act when the vote closed
on that day, and that the city officers voted for under the
old charter at the same election never became city officers.
Nothing remained to be done, and the old charter was in fact
repealed when the voting ceased on that day, and the persons
voted for on the same day the general law was adopted, for
city Officers, could not thereafter be qualified under a charter
that had ceased to exist. In Louisville v. Savings Bank, 104
U. S. 469, it was held, on authority of the adjudged cases
on that subject, that courts, when substantial justice required
it to be done, might ascertain the precise hour when a statute
took effect, by the approval of the executive ; and so, in ascer-
taining when a constitutional provision was adopted, no rea-
son was perceived why the court might not, in proper cases,
inquire as to the hour when such approval became effective,
as to the time when, by the closing of the polls, the people
had adopted such provision. Adopting this view of the law,
it may be held this separate article of the constitution took
effect at the close of the polls on the day of the election. It
was the will of the people, as expressed by their vote through-
out the State, which had the effect to adopt it, and it was an
accomplished fact when all the votes had been cast. This is
the most favorable view for the relator, counsel can with any
show of reason insist upon, and even under this construction
it is not thought the donation in this case is saved. On the
undisputed facts of this case, can it be said the donation was
voted, under existing laws, prior to the adoption of the sepa-
rate article of the constitution, regarding that as having taken
place at the closing of the polls on the day of the election ?
The People ex rel. v. Town of Bishop. 133
Opinion of the Court.
Certainly not. The same construction must be applied to
the donation as to the article of the constitution — that is,
that it was not voted until the votes were all cast. Which
had priority then ? — the adoption of the constitution, or the
vote for the donation ? It is certainly not enough they were
acts occurring at the precise same time. The donation must
have been voted prior to the adoption of the constitution, to
be valid. When two acts are done at the precise same in-
stant of time, it can not be said one occurred prior to the
other. It does not appear from anything in this record the
donation was, in fact or in law, voted prior to the adoption of
the constitution. In order to entitle relator to relief, it was
necessary he should show affirmatively it was so clone.
It will be noticed the election whether the town would make
the donation, was fixed to take place on the same day of the
election for the adoption or the rejection of the constitution
by the people of the State. It was held on that day. The
same judges and the same clerks conducted both elections,
although two ballot boxes were used and separate poll books
and tally lists were kept. Both elections were opened at the
exact same time, and both were closed at the same time, by
one proclamation. The charter of the railroad company,
under which the election to vote the donation was held, re-
quired the election should be conducted in the same manner
and at the same places provided for holding elections in such
township. The schedule to the new constitution required the
election to be conducted and return thereof made according
to the laws then in force regulating general elections, except
no registry of voters could be required, and the polls should
be kept open for the reception of ballots until sun set of the
day of the election. The laws regulating general elections
then in force, required the polls to be opened at eight o'clock
in the forenoon, and provided they should be closed at six
o'clock P. M., unless the judges should decide to keep the
polls open to a later hour, which they might do not longer
134: The People ex rel. v. Town of Bishop.
Opinion of the Court.
than midnight. The testimony of one of the clerks of the
election is, the polls were kept open until about sun down,
and that both elections were closed at the same time, by one
proclamation. It is evident the election for donation was not
closed at six o'clock. The polls were kept open, as the judges
had the right to do under the law, and were not in fact closed
until about sun down, when the polls for the election on the
adoption of the constitution were closed. Whether any votes
were cast after six o'clock in the afternoon does not appear.
The witness does not recollect how that was. The voting
was partly done in the forenoon and partly in the afternoon.
The last voter whose name appears on the poll book was
H. Coleman, or Colemyer, and the testimony is he voted at
each election. That is evidence tending also to show both
elections were kept open for the same time and were closed
at the same hour. Of this fact there can scarcely be a doubt,
and the hour at which the polls were closed was about sun
down.
Assuming, then, as must be done, the polls for the donation
were not closed at six o'clock, but at sun down, what warrant
is there for saying the vote on the donation was taken before
the separate article of the constitution was adopted? Cer-
tainly none. But the argument of counsel for the relator
goes further, and as it is understood, assumes that as the
schedule to the constitution required the polls to be kept open
for the reception of ballots on the question of the adoption of
the constitution, until sun set of the day of the election, it
will be presumed it was observed everywhere in the State;
and even admitting the polls were not closed in the town of
Bishop until sun down, as there were voting places farther
west in the State than in the town of Bishop, the polls must
have been closed some minutes earlier at the latter place, so
that the donation was in fact voted under existing laws before
the voting had ceased at the westernmost voting places.
Whether that is so, is uncertain ; and if a fact, it is scarcely
The People ex rel. v. Town of Bishop. 135
Opinion of the Court.
susceptible of being made certain by any proof attainable.
It is certain no proof was offered, and the presumption it is
insisted should be indulged in support of that view, is over-
come by considerations entitled to great weight : First, there
is no law that required the polls should be closed precisely at
sun set. It was only required the polls should be kept open
until that time. Non constat, the polls were kept open in the
town of Bishop as late as at any other point in the State.
Of course, the record contains nothing on that subject. Sec-
ond, "sun set," although a definite period of time at any
given locality, yet what that time is can only be known from
scientific calculations, which very few persons are capable of
making. It is not precisely the same on any two days in
succession, nor is it exactly the same at any two points dis-
tant apart in the State on the same day. It is known the
sun sets later at a point west than one further east, and of
this fact the court may take judicial notice. The exact dif-
ference of time, however, can only be ascertained by a mathe-
matical calculation. Certainly the framers of the schedule
to the constitution never expected the judges of election at
the several voting places in the entire State would ascertain
with mathematical precision the hour of "sun set," that they
might close the polls at that precise instant. It is believed
the term "sun set" was not used by the framers of that in-
strument in any accurate sense, to be determined by calcula-
tion. Evidently all that was meant was that the polls should
be kept open until it should appear to be "sun set," as that
fact might be ascertained by the judges from observation, or
from the best information attainable. Nor was it expected
the judges at the several voting places throughout the State
would observe the hour of "sun set" with exact accuracy.
The hour of "sun set" on 'any given day, as it might appear
to different persons, could hardly be expected to be accurately
observed. Their judgment might vary many minutes. One
person might conclude the sun had set, and another might
136 The People ex rel. v. Town of Bishop.
Opinion of the Court.
not think so. It would be a mere matter of judgment, and
uncertain at that, aided by the most accurate information
ordinarily possessed. At most, the actual difference in time
of "sun set" at the voting place in the town of Bishop and
at the westernmost place in the State would be but a few
minutes, and is so slight as to be almost, if not entirely,
inappreciable by common observation. It might be that the
judges at the latter place would conclude it was "sun set,"
and close the polls before the judges at the former place
would conclude the hour for closing the polls had arrived, or
before they deemed it necessary to close the polls.
Conceding, then, that the polls were closed in the town of
Bishop at what the judges thought was "sun set," there is no
warrant for the proposition that was in fact earlier than the
polls were closed at the westernmost voting place in the State,
or elsewhere in the State. Whether the polls on the day of
the election were, as a matter of fact, closed at an early or
later time at one place than another point in the State, rests
entirely on conjecture, and is too uncertain to base a judicial
finding upon it. There is nothing in the record that shows
or tends to show the donation insisted upon was voted prior
to the adoption of the constitution, assuming, as it is thought
may be done, it was adopted when the votes were all cast, on
the day of the election.
It is suggested the decision of the Supreme Court of the
United States in Louisville v. Savings Bank, 104 U. S. 469,
ought to have great weight in the decision of this case. Were
the facts analogous, the authority of the case would be freely
acknowledged as being entitled to great consideration. That
case involved the legality of a vote taken on the 2d of July,
1870, to issue bonds for the payment of a donation that
had been previously voted. The town meeting to determine
whether bonds should be issued in lieu of a special tax, was
appointed to be held at nine o'clock in the forenoon of the
2d of July, 18T0, and it was so held. It was on that state
The People ex rel. v. Town of Bishop. 137
Opinion of the Court.
of facts the court said: "The presumption may be therefore
fairly indulged that the township had in fact voted for issuing
bonds before the close of the general election on the same day
the people of the State voted on the adoption of the particular
section of the constitution separately submitted, which relates
to the municipal subscriptions to railroads and private cor-
porations." But in the case being considered there can be
no presumption indulged the electors of the town voted the
donation before the close of the general election, for the evi-
dence, to say the least of it, leaves that question in doubt,
so that it can not be fairly said it affirmatively appears the
donation was voted before the adoption of the article of the
constitution separately submitted, which prohibits all sub-
scriptions or donations to railroads or other private corpo-
rations.
This view being conclusive of the whole case, it will not
be necessary to consider the constitutionality of the act of
June 22, 1883, which declares, "the liability of all counties,
cities, townships, towns or precincts which have voted aid or
donations to or subscriptions to the capital stock of any rail-
road company, in conformity to the laws of this State, for
the building or in aid of the building of any railroad to, into,
through or near such county, city, township, town or precinct,
to issue such voted aid, shall cease and determine upon and
after the 1st day of September, A. D. 1883, and no bonds
shall be issued or stock subscribed to any such railroad com-
pany after that date, upon account of or upon the authority
of such vote," which would otherwise be directly involved in
the decision to be made, nor will it be necessary to discuss
any other question raised on the record.
The judgment of the circuit court will be affirmed.
Judgment affirmed.
138 - Perry et al. v. Burton et al.
Svllabus.
James S. Perry et al.
v.
George W. Burton et al.
Filed at Ottawa September 27, 1884.
1. Evidence— proof of contents of lost deed. After the fact of the
execution and loss of a deed was clearly shown, the substance of the contents
of the deed was proved by oral evidence: Held, that the proof was suffi-
ciently full. All that witnesses in such cases can be expected to remember,
is that a deed was made, to whom and about what time, for what considera-
tion, whether warranty or quitclaim, and for what property. To require
more would render such proof almost impracticable.
2. Limitation — act of 1839 — what is color of title. To constitute color
of title, the deed must purport to convey title to the land of which it is
claimed to be color of title.
3. Same — color of title as to an undivided interest — as to the identity
of such interest. If it be conceded a tax deed for the undivided half of a
tract of land may be color of title as to one of the undivided halves, a party
holding such color of title must show that sale of the land was for the half
interest against which it is sought to be used. The burden of proof is on
him to show that the sale was not made for the other half interest not assailed
by him.
4. Where an administrator, under decree of court, sold and conveyed an
undivided half of a tract of land in September, 1843, of which his intestate
died seized, to one Judd, who, in November, 1843, conveyed the same interest
to Cook, who, in November, 1842, had bought at tax sale the undivided half
of the same tract for the tax of 1841, and received a sheriff's deed December
9, 1844, on his tax purchase, and claimed that he thereby obtained title to
both undivided halves, or title to one and color of title to the other: Held,
that in the absence of satisfactory evidence as to the fact the tax sale was of
a different undivided half than that sold at the administrator's sale, he could
not claim title to the whole, and prevent a partition.
5. Same — evidence as to payment of taxes. The proof of the payment
of all taxes on land under color of title, in order to defeat the paramount title,
must be clear and convincing. Such a title should not be overcome by loose
and uncertain testimony, or upon mere conjecture or violent presumptions.
Appeal from the Superior Court of Cook county; the Hon.
John A. Jameson, Judge, presiding.
Perry et al. v. Burton et at. 139
Opinion of the Court.
Mr. Edmund S. Holbrook, for the appellants.
Messrs. Moore & Browning, for the appellees.
Messrs. G. & W. Garnett, for the Louisville Banking Com-
pany.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
This was a bill for the partition, as first drawn, of a tract
of eighty acres of land in Cook county, and to quiet the title
thereto. By an amendment to the bill, the north forty acres
of the tract were taken out of the controversy, and the alle-
gations and prayer of the bill were limited to the south forty
acres.
The tract was entered by Isaac Cook on the 30th of Novem-
ber, 1835, and he conveyed the undivided half thereof to Asa
M. Chambers and Sheldon Benedict, by warranty deed, on
the 7th of February, 1836. In November, 1848, Benedict
conveyed his interest in the tract to Chambers, and on the
10th of November, 1871, Chambers conveyed his interest in
the tract to the appellants, James S. Perry and John N.
Henderson. No question is made as to any of these con-
veyances, except that by Benedict to Chambers. The deed
effecting that conveyance was lost, and its execution and
contents were proved by oral evidence only, and counsel for
appellees insist that such evidence was not sufficiently full
and satisfactory. We can not concur in this view. The facts
that the deed was executed and was afterwards lost were
clearly proved. If the witness is credible, there can be no
doubt in either of these respects. He stands unimpeached
by any of the modes of impeachment known to the law.
There is nothing incredible in his evidence, and so far as the
record discloses, there was nothing in his manner to discredit
him. His testimony as to the contents of the deed, we think,
140 Perry et at. v. Burton et al.
Opinion of the Court.
is sufficiently full. A witness testifying to the contents of a
lost deed is not to be expected to be able to repeat it verbatim
from memory. Indeed, if he were to do so, that circumstance
would, in itself, be so suspicious as to call for an explanation.
All that parties, in such cases, can be expected to remember,
is, that they made a deed, to whom, and about what time,
for what consideration, whether warranty or quitclaim, and
for what property. To require more would, in most instances,
practically amount to an exclusion of oral evidence in the
case of a lost or destroyed deed. The evidence here meets
the requirements suggested, and in the absence of contradic-
tion or impeachment, was sufficient to authorize the court to
decree upon the faith of it.
Appellees' title arises thus : On the 2Sth of October, 1837,
Cook conveyed the other undivided half of the tract, by war-
ranty deed, to John C. Gibson, leaving himself then divested
of all title. It appears that Gibson died intestate on the
27th of January, 1840, and letters of administration were
issued upon his estate to Margaret Gibson, as administratrix,
on the 6th of February, 1840. On the 28th of November,
1842, the undivided half of the tract was sold for the delin-
quent taxes of 1841, and purchased by Cook. At the March
term, 1843, of the Cook circuit court, the administratrix of
the estate of Gibson was empowered, by decree, to sell the
interest in the tract owned by Gibson at the time of his
death, for the purpose of paying debts, and on the 11th of
September, 1843, she, in pursuance thereof, sold and con-
veyed the same to Norman B. Judd, and on the 10th of
November, 1843, Judd conveyed his interest in the tract to
Cook. On the 9th of December, 1844, the sheriff of Cook
county executed a tax deed to Cook for the undivided half of
the tract. On the 6th of July, 1857, Cook sold and assumed
to convey the whole tract to Finnell & Wintersmith, and all
claims on behalf of appellees are through that conveyance.
That deed, of course, as a conveyance of title, depends upon
Perry et al. v. Burton et al. 141
Opinion of the Court.
the regularity of the title in Cook at the time it was executed,
and it is not sought to be used as mere color of title, because
there has been no successive seven years' payment of taxes
under it. But it is contended on behalf of appellees that the
deed of Judd, and the sheriff's tax deed to Cook, constituted
color of title in him, obtained in good faith, and that the
evidence shows that he paid taxes thereunder for seven suc-
cessive years. Appellants deny both that those deeds con-
stituted color of title in Cook and that the evidence shows
that he paid taxes thereunder for any period of seven years
successively. To constitute color of title the deed must pur-
port to convey title to the land of which it is claimed to be
color df title. Bride v. Watt, 23 111. 507; Busch v. Huston,
75 id. 343 ; Sedgwick & Wait on Trial of Titles to Land,
sec. 768.
This tract of land was not subject to taxation until 1841.
(Act of Congress, April 18, 1818, 4th div. of sec. 6, — Bev.
Stat. 1874, p. 29; Ordinance of August 26, 1818, sec. 4,—
Bev. Stat. 1S74, p. 30.) At that time the title to one undi-
vided half was in the heirs at law of John Gibson, deceased,
and the title to the other undivided half was in Chambers
and Benedict. If it be conceded that a tax title could, under
the law then in force, be acquired to an undivided interest in
a tract of land, it is obvious there being default in the pay-
ment of taxes on either undivided half would have justified
the description of the land as it was described in the tax sale
and the tax deed. The difficult question is to ascertain
whether that undivided half was that held by Chambers and
Benedict, or that held by the heirs at law of Gibson. The
burden is upon appellees to show that it was that held by
Chambers and Benedict. Have they done so ? We think not.
There is no proof of any payment of taxes either by the heirs
of Gibson or by Chambers and Benedict, or of delinquency in
either in that regard, prior to the delinquency for which was
this tax sale. It is true that Chambers says he never paid
142 Perry et al. v. Burton et al.
Opinion of the Court.
any taxes on this land, nor did Benedict, that he knows of, —
still it does not appear that Benedict might not have paid
them without his knowledge, or that they might not have
been paid by some one else. The presumption, if we were to
indulge in presumptions alone, would seem, from the circum-
stances in evidence, to be stronger that the delinquency was
that of Gibson's heirs than that it was that of Chambers and
Benedict. The delinquency occurred after the death of Gib-
son, and before the settlement of his estate. The adminis-
tratrix was not authorized to pay the taxes, and the heirs at
law do not seem to have had an adequate motive to do so,
because the land is shown to have been charged with the
payment of debts against the estate to the extent of the value
of their interest in the land.
But the evidence of Cook, as we understand it, shows that
he paid taxes on the undivided half belonging to Chambers
and Benedict, under a claim and belief of ownership, and
consequently that the delinquency must have been that of
Gibson's heirs at law. He says : "After I received that
deed I paid taxes. I paid on the whole, or both undivided
halves. I paid taxes on it before I purchased it for taxes.
Yes, sir; on the whole of it, I tnink." Question 14: "And
was certain you paid on your own individual half ?" Answer :
"Yes, sir. " We have seen that there could have been taxes
paid only for the year 1841 before the sale, the sale for de-
linquency being for that year, and so the witness must have
been mistaken in saying that he had paid taxes on the whole
tract before the sale. But it is charitable and reasonable to
assume that he paid before that time on what he called his
half, and it is only as to this half that the question and
answer make him speak quite positively. What that half
was, he explains further along in his re-direct examination.
He there says: "I claimed the land in this way: There
was an indebtedness due me by Chambers and Benedict. I
thought, in case it was not paid that gave me a right to the
Perry et al. v. Burton et al. 143
Opinion of the Court.
property. The matter had not been settled up from the time
they got the property. I always waited for them to come up
to perform their promise, but they never returned. I sup-
posed they were dead." The mere fact that subsequent to
his purchase at the tax sale, Cook bought and took a deed
from Judd for an undivided half of the tract, and that he sub-
sequently thereto took a deed from the sheriff for an undivided
half of the tract by virtue of his tax sale, does not necessarily
prove that he was trying by each to obtain a deed to a separate
undivided half. The proceedings under which the adminis-
tratrix sold may have been irregular, or have been feared to
be so, and the tax sale may have been distrusted as a source
of title, and so the party have been anxious to prop up and
bolster his title to that undivided half as best he could ; but
having, as it would seem, already a belief that he had the
undivided half which he had conveyed to Chambers and Bene-
dict, however erroneous the belief, he would not feel prompted
to do any act to give him that title. In any view we can take,
we are unable to say that it is made here to appear, by the
evidence, that the tax sale was of a different undivided half
than that which was sold at the sale of the administratrix.
The evidence of the payment of taxes for seven successive
years is confined to Cook's statements. In his direct exam-
ination he is quite full and positive as to the payment, but
in his cross-examination he shows that in fact he knows
nothing about it. All that he proves is that he instructed
his agent to pay, not these particular taxes, but all his taxes.
Thus, he is asked: "Do you remember it" (i. e., the pay-
ment of taxes on this property,) "clearly ?" And he answers :
"Well, I judge so from the fact that if it had been sold I
would have had to redeem it, as I paid taxes right along."
Then he is asked: "So your remembrance is one of infer-
ence?" To which he replies: "Well, yes. It is a good
many years ago. I can't swear to any particular point.
That is my general idea of it, to the best of my recollection. "
144 Marvin et al. v. Ledwith et al.
Syllabus.
He was then asked: "Can you swear positively that you
paid any one certain year — say 1850 ?" He answered : "Well,
my impression is that the taxes were paid every year, except
by some mishap my agent did not pay it. He was author-
ized and directed to pay the taxes on my property. " Again
he says : "Well, I know they were paid, as I had an agent
to pay my taxes. I could not say my agent paid every year.
It was his business to do it. " And again : "I presume it was
paid every year. " And still again, in speaking of their pay-
ment, he says : "It is the presumption. I would not swear
positively to anything."
We said in Hurlbut v. Bradford, 109 111. 397, where the
same kind of question was before us : "Inasmuch as the
payment of taxes under color of title operates to defeat the
paramount and all other titles, when relied on, the proof
must be clear and convincing. Such titles should not be
overcome by loose and uncertain testimony, or upon mere
conjecture or violent presumptions." This evidence utterly
fails to come up to this standard.
For the reasons given, the decree below is reversed and
the cause remanded.
Decree reversed.
Mr. Justice Scott, dissenting.
Matthew Marvin et al.
v.
John Ledwith et al.
Filed at Ottawa September 27, 1884.
1. Estate in remainder — whether vested or contingent — effect of a
defeat of an intervening life estate. A vested remainder is where the estate
is fixed to remain to a determinate person after the particular prior estate is
spent or comes to an end. A contingent remainder is where the estate in
Marvin et at. v. Ledwith et al. 145
Statement of the case.
remainder is limited to take effect either to a dubious and uncertain person
or upon a dubious and uncertain event, so that the particular estate may
chance to be determined and the remainder never take effect. An estate may
vest in one, liable to be divested, for the benefit of another.
2. A devise which was as follows, "I give and bequeath to my wife, M.,
during her natural life, and after her death to J. L., all those tracts, "etc.,
describing the lands, vests a life estate immediately upon the testator's death
in his widow, and the remainder in fee in J. L. The fact that the widow
might renounce the will and take under the statute, did not render the remain-
der to J. L. contingent.
3. Will — renunciution by widow — effect on residue of devise. Where
land is devised, a life estate to the testator's widow, with remainder to a
devisee named, it can not be rendered intestate property merely by the renun-
ciation of the will by the widow. That will lessen the quantity of the estate
devised, to the extent of the estate which the law gives the widow, but other-
wise the property must pass by the will.
Writ of Error to the Circuit Court of Stephenson county ;
the Hon. William Brown, Judge, presiding.
The bill in this case was brought by Matthew Marvin and
Mary Brown, against John Ledwith, Delia Biehl and Mary
Franey, and was for the partition of the lands of which
Bobert Franey died seized. The facts all appear by admis-
sion on demurrer to the bill. It appears that Bobert Franey,
through whom the parties claim the land in question, died
on the 12th day of June, 1877; that he left surviving him
his widow, Mary Franey, but no children or descendants of
any child, and that his only heir at law was his sister, Mary
Brown, one of complainants. Afterwards, Mary Brown con-
veyed one-half of the interest she claimed in the land, to
her co-complainant, Matthew Marvin, and it is in that way
complainants claim one-half of the land of which decedent
died seized. No question is made as to the other half of the
land. That is conceded to be in one of defendants.
On the day of his death, Bobert Franey made and pub-
lished his last will and testament, which was afterwards duly
admitted to probate. As to the validity of the will and the
10—111 III.
146 Marvin et al. v. Ledwith et al.
Brief for the Plaintiffs in Error.
regularity of the probate no question is made. Omitting the
formal part, the following is a copy of the will :
"First — I give and bequeath to my wife, Mary Franey,
during her natural life, and after her death to John Ledwith,
all those tracts or parcels of land situate in the county of
Stephenson, and State of Illinois, to-wit : the north-west
quarter of the south-west quarter, and the south-east quarter
of the south-west quarter, and the west half of the south-west
quarter, all being in section number twenty-seven (27), in
township number twenty-seven (27,) range six (6), east of
the fourth principal meridian, excepting about four acres
previously sold. And lastly, I give and bequeath all my per-
sonal property, of every name and nature, to my wife, Mary
Franey, to be owned, used and possessed by her during her
natural life ; and all such personal property remaining after
her death I give and bequeath to John Ledwith."
Afterwards, on the 20th day of July, 1877, the widow of
the testator renounced, in due form of law, all benefit of the
provisions made in the will for her, and elected to take her
legal share of the estate of her late husband.
To the bill alleging these principal facts, with others of
less importance, the court sustained the demurrer and dis-
missed the bill, and complainants bring the case to this court
on error.
Mr. M. Marvin, for the plaintiffs in error, claimed that the
estate created in the will was a contingent remainder, and
that the life estate to the widow and the remainder to Led-
with constituted but one estate, in law. 2 Blackstone's Com.
168; 4 Kent's Com. (6th ed.) 234; 1 Fearne on Contingent
Kemainder, 307 ; 2 Washburn on Real Prop. 224.
The remainder was contingent. The preceding life estate
upon which it depended was liable to terminate before the
death of the widow. 4 Kent's Com. 206 ; 1 Fearne on Con-
Marvin et al. v. Ledwith et al. 147
Brief for the Plaintiffs in Error.
tin gent Remainder, 4, 368 ; Purefoy v. Rogers, 2 Saund. 382 ;
Doe v. Morgan, 3 T. R. 765.
In construing the will of Robert Franey, chapter 41 of the
Revised Statutes of 1874 (sec. 12, p. 424, title "Dower,")
enters into and becomes a part of his will, and when he says,
"I give and bequeath to my wife, Mary Franey, and after her
death to John Ledwith," the statute inserts this contingency :
provided the widow does not renounce the provisions made
for her in the will. If she does, that will destroy the estate as
it is created in said will, and the heirs will take the inherit-
ance in fee simple. Green v. Birch, 2 Bradw. 532 ; Matthias
V. Cook, 31 111. 87 ; 1 Fearne on Contingent Remainder, 363 ;
2 Washburn on Real Prop. 548 ; Purefoy v. Rogers, 2 Saund.
385; Lessee of Thompson v. Hoop, 6 Ohio St. 481.
The difference between a remainder and an executory de-
vise is, that the first may be barred at the pleasure of the
tenant of the preceding estate, (unless it may be a mere
term,) but he who holds by force of an executory devise has
an estate above and beyond the power and control of the first
taker, who can not alienate or change or prevent its taking
effect, according to the terms of the will, upon the happening
of the contingency upon which it is limited. It does not
depend upon the particular estate, but it operates by way of
determination of the first estate limited, and the substitution
of another in its place. Fearne on Contingent Remainder,
419, note b; Nightingale v. Burr ell, 15 Pick. 110.
The remainder must be so limited as to await the natural
determination of the particular estate, and not to take effect
in possession upon an event which prematurely determines
it. This is the true characteristic of a remainder, and the
law will not allow it to be limited to take effect on an event
which goes to defeat, or abridge, or work the destruction of
the particular estate, and if limited to commence on such a
condition it is void. 4 Kent's Com. 249 ; Cogan v. Cogan,
Cro. Eliz. 360.
148 Marvin et al. v. Ledwith et til.
Brief for the Defendant in Error Ledwith.
Mr. Henry C. Hyde, for the defendant in error Ledwith :
There can be no doubt that by the will a life estate is
devised to the widow, Mary Franey, and the remainder in fee,
after her death, to the defendant Ledwith. From the date
of the probate of the will (June 26, 1877,) to the elate of the
filing of her renunciation, (July 20, 1877,) the widow had an
undoubted life estate in the land, which she might have con-
veyed so as to pass an estate for her life to her grantee.
Upon the determination of that life estate, no matter whether
by her death or her inability or refusal to accept, the re-
mainder created by the will would take effect in possession at
once, — and that is the true definition of a vested remainder.
4 Kent's Com. 202, 203 ; Nicoll v. Scott, 99 111. 529.
Both the estate for life in the widow and the estate in
remainder in John Ledwith were vested estates at the decease
of the testator. 2 Eedfield on Wills, 176, 215, 217; 2 Jar-
man on Wills, (Band. & Tal.) 407.
The widow's renunciation can not destroy the will. The
will remains, notwithstanding she has chosen to decline its
provisions in her favor, and by no act of hers can it be an-
nihilated and the estate of her husband converted into an
intestate estate. Mc Murphy v. BoyleS, 49 111. 110.
By her renunciation of the will the widow determined her
life estate in the whole land, and acquired, by virtue of the
statute, an estate in fee to an undivided one-half of it, and
by such determination of her life estate the remainder in fee
to the defendant Ledwith in the other undivided half of the
land was accelerated, and took effect in possession at once.
2 Jarman on Wills, (Band. & Tal.) 159, 160; Blatchford v.
Newberry, 99 111. 48.
The statute gave the widow the power to defeat the tes-
tator's intention as to one-half the land, and she exercised
that power by abandoning the will ; but as to the remaining
half of the land she had no such power, and there can be no
doubt that by her act the remainder was accelerated, and the
Marvin et al. v. Ledwith et al. 149
Opinion of the Court.
defendant John Ledwith rightfully took possession at once,
and that by the exchange of conveyances between him and
the widow he was the owner in fee of the east half of said
land.
Mr. Justice Scott delivered the opinion of the Court :
The bill in this case is framed on the theory the lands of
which Eobert Franey died seized became intestate property
on the filing of the renunciation of the benefit of his will by
his widow, as was done, under the provisions of the statute,
and that in consequence of such renunciation his widow
would take one-half of the real estate absolutely, and the
other half would go to his heirs at law, of whom complainant
Mary Brown alone sustained that relation to the testator.
If this view is sustained, it would exclude the devisee in the
will from any interest whatever in the lands involved in this
litigation.
It is assumed in support of this view of the case, the
estate created by the will in the devisee was a contingent
remainder, and was lost or was defeated when the life estate
of the widow7 was terminated by the renunciation of the will.
The argument in support of the position taken is, the life
estate created by the will in the widow, and the remainder to
John Ledwith, constituted but one estate, in law, and it is
said, as the remainder depended upon the life estate for sup-
port, and by the act of the widow, there was no precedent
estate, — "the thing supported must fall to the ground if once
its support be severed from it. " The reasoning on this branch
of the case is subtle in the extreme, and so in the books that
treat of the definition of estates at common law, the lines of
distinction between vested and contingent remainders are so
nicely drawn they are sometimes difficult to trace, and it is
said in some instances a vested remainder would seem to
possess the essential qualities of a contingent estate. But
divesting the subject of all technical learning, it is seen the
150 Marvin et al. v. Ledwith et al.
Opinion of the Court.
simplest form of an estate vesting in succession at the same
moment, is that of a fee simple devised to one for life, and
after his decease to another in fee. The first is an estate in
possession, and the latter is a vested remainder. A vested
remainder is where the estate is fixed to remain to a deter-
minate person after the particular estate is spent or comes
to an end. A contingent remainder is where the estate in
remainder is limited to take effect either to a dubious and
uncertain person or upon a dubious and uncertain event, so
that the particular estate may chance to be determined and
the remainder never take effect. The principle is, the pre-
cedent particular estate and the remainder are one estate, in
law, and hence the rule is, they must subsist and be in esse at
one and the same time, either during the continuance of the
first estate, or at the very instant when that is determined,
so that no other estate can come between them. (2 Black-
stone's Com. 168.) It will be seen the will in this case
creates a vested remainder in the devisee, within these com-
mon law definitions. The estate devised was a fee simple.
A life estate was devised to the widow, and the fee to Led-
with. On the death of the testator both estates became
vested. The fee vested in the devisee during the continuance
of the precedent particular estate, and that is all the law
requires to make it a vested remainder. Had the widow
never renounced the benefit of the will, it would not be in-
sisted the fee did not pass to the devisee. It vested in him
on the death of the testator and during the continuance of
the particular estate which supported it. That was the con-
dition for some time after the death of the testator. It is
true that as to one-half of the estate it wras subject to be
divested at the election of the widow, which was done. That
is consistent with law. An estate may vest in one, liable to
be divested, for the benefit of another. This construction of
the will finds support in the doctrine of Nicoll v. Scott, 99
111. 529.
Marvin et al. v. Ledwith et al. 151
Opinion of the Court.
But the whole bill rests upon a mistaken theory. It is,
that after the widow renounced the benefit of the will the
estate devised was intestate property. Such is not the law.
It is still testate property, and the statute has provided for
equalizing bequests and legacies in cases .where the widow
renounces the will. That is a legislative construction of the
statute, under which the will may stand. This is not a
new question in this court. In McMurphy v. Boyles, 49 111.
110, a question closely allied to the one involved in this
case was considered. The testator left considerable personal
estate, and provided by his will the income of one-half of it
should be paid to his wife during her life, and disposed of the
other half. The widow in that case, as in this, renounced
the benefit of the will. There were no children or descend-
ants of any child, and the widow claimed the entire estate
on the ground it was intestate property. It was held the
will remained, notwithstanding the widow chose to decline its
provisions in her favor, and that by no act of hers could it
be annihilated and the estate of her husband be converted
into intestate property. That is precisely the case here.
Notwithstanding the widow declined the provisions of the will
of her husband made for her benefit, his will must stand.
The effect may be, and doubtless is, that the quantity of the
estate devised may be lessened, but that does not prevent the
remainder from passing to the devisee. It is still testate
property, and is not subject to distribution among the heirs
of the decedent, as is intestate property. In no view that
can be taken could the property be divided among the heirs,
and complainants' bill was therefore properly dismissed.
The decree of the circuit court must be affirmed.
Decree affirmed.
152 Linington v. Strong et al.
Syllabus.
Charles M. Linington
v.
George H. Strong et al.
Filed at Ottawa September 27, 1884.
1. Kes judicata — judgment of Appellate Court reversing and remand-
ing. A decision or holding by the Appellate Court in reversing a judgment
and remanding the cause, not being a final judgment, from which either party-
may appeal, can not be regarded as res judicata on a second appeal. One
party can not be concluded by the judgment and the other not.
2. Fraud— false representations. At law an intent to deceive must exist
to constitute actual fraud. Representations, though untrue, if not made with
a knowledge of their falsity, can not be said to constitute fraud, when the
contracting parties occupy no fiduciary relation or position of confidence or
trust toward each other.
3. Same — negligence in signing a contract without reading it. In an
action upon a written contract, which the defendant sought to avoid on the
ground of an alleged fraudulent statement that it was a copy of an original
draft except in a matter which did not concern him, the court, at the instance
of the plaintiff, instructed the jury that a party executing a written contract
should exercise reasonable care and prudence to learn its nature and con-
tents before signing it, by reading the same, if capable of reading, and that
he would not be excused for his want of care and prudence in signing with-
out so reading the same, unless induced to do so by willfully false statements
of the party procuring his signature: Held, that the use of the word "will-
fully," in the connection it was employed, did not render the instruction
erroneous.
4. What is negligence in signing a contract without reading the same, is
not a question of law, but one of fact for the jury, to be judged of from the
peculiar facts and circumstances of each case. In such a case it is not proper
to select certain of the facts, and tell the jury in an instruction that they afford
no evidence of negligence or a want of proper and reasonable care.
5. Contract — royalty on a specified amount of product— evidence as
to a less amount. Where the contract sued on provided that the defendant
should pay the plaintiff $1.44 per gross on at least 2500 dozen of pincers
each year which the defendant was to manufacture and sell, whether he made
and sold that many or not, it was held, in a suit on the contract, that evidence
on the part of the defendant that he had made only 9135 pincers, and that he
ceased to manufacture them after a certain time, was irrelevant, as he was
bound to pay for the 2500 dozen at all events, and that was all for which a
recovery was sought.
Linington v. Strong et al. 153
Statement of the case. *
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county; the Hon. Eollin S. Williamson, Judge, presiding.
This was an action of assumpsit, brought by George H.
Strong and John Young, against Charles M. Linington, to
recover the second and third years' royalty, under a contract
dated April 1, 1876. The declaration contained three special
and the common counts. The first special count avers the
making of the written contract, by which the plaintiffs guar-
anteed to the defendant, for the period of five years from the
date thereof, the exclusive right to make and sell certain im-
proved pincers, mentioned in letters patent from the United
States to said Strong, in consideration for which the defend-
ant was to pay the plaintiffs a royalty of $1.44 for each gross
of said pincers made and sold by him during that time, pay-
ment to be made quarterly. The contract, which was set
out in licec verba, contained this clause : "And said party
of the second part hereby agrees to keep an accurate book
account of the number of said pincers made and sold by him,
and render a true statement therefrom to the first party at
the end of each quarter, such statement of account to be
verified by affidavit by the party of the second part ; and also
agrees to pay the royalty on at least 2500 dozen of said
pincers each year, and in default thereof this contract may,
at the option of said party of the first part, be declared null
and void." It further provided that one-half of the royalty
on the 2500 dozen should be paid to each of the parties of
the first part, and all in excess of that should be paid, sixty
per cent to Strong, and forty per cent to Young. The count
concluded by alleging that on April 1, 1880, there became
due from the defendant to plaintiffs, $1000, under the terms
of said contract. The second count states that plaintiffs had
granted the defendant the privilege of making and selling
said invention ; that he had agreed to pay them a royalty of
154 Linington v. Strong et al.
•» Statement of the case.
$1.44 on each gross made and sold, and that he had made
and sold to the amount of $100,000, and owed plaintiffs there-
for $1000. The third count alleges that on April 1, 1876,
plaintiffs had granted defendant the said exclusive right, etc.,
for five years, and that in consideration thereof he had agreed
to pay them each year a royalty on 30,000, at $1.44 per
gross, and that by virtue of such agreement he owed them
$1000 on April 1, 1880.
During the trial the defendant offered to prove that he
had only made 9135 pincers, and to rebut any inference of a
ratification of the contract he offered to show when he quit
making such pincers, which, on objection, the court refused
to admit, and the defendant excepted.
There was evidence that one of the plaintiffs took the draft
of the contract to add thereto what share of the payments
each was to have, as between the plaintiffs, and to have three
copies thereof prepared for execution, and that such plaintiff
told the defendant that the copies produced were copies of
the original, except as to such addition, and that defend-
ant thereupon signed such copies without reading the same
through. From the original draft introduced in evidence
it appeared that the contract, as executed, was not a copy
thereof, as stated. The plaintiffs denied that any such rep-
resentations were made to induce the defendant to sign the
contract.
On behalf of the plaintiffs the court instructed the jury
as follows :
"The court instructs the jury that the law requires of every
person the exercise of reasonable prudence and caution in
the affairs of life, and the law requires that before relieving
a party from a contract on the ground of fraud in obtaining
its execution, it should appear, from the evidence, that on
entering into such contract he exercised reasonable care and
prudence to learn its nature and contents before he signed
Linington v. Strong et al. 155
Statement of the case.
it ; and the jury are further instructed that if they find, from
the evidence, that the defendant could read at the time he
signed the contract sued on, then it was the duty of the de-
fendant to read such contract for himself before he signed
it, unless the jury believe, from the evidence, that he was
induced not to do so, without the want of reasonable prudence
and caution on his part, by willfully false statements of the
plaintiffs, or one of them, that it was a true copy of the draft
made by the defendant's attorney, except as to the division
of a portion of the royalty; and if the jury find, from the
evidence, that the defendant was able and had full oppor-
tunity to read such written contract before he signed, and
was not induced to forego reading it by willfully false state-
ments of the plaintiffs, or either of them, or that defendant,
under all the facts and circumstances shown by the evidence,
did not exercise reasonable prudence and caution in not
reading such written contract for himself before he signed
it, then the court instructs the jury that the defendant can
not now be permitted to say that he did not know what was
contained in said contract when he signed it, and the jury
should find that, when made, said contract became binding
on the defendant."
— To the giving of which instruction the defendant excepted,
and asked the court to instruct the jury as follows, without
the words in brackets :
"1. The jury are instructed, that as between the parties
fraud vitiates all contracts ; and if the jury believe, from the
evidence, that the defendant and plaintiffs made an agree-
ment in regard to the matters in issue ; that after the terms
of said agreement were settled defendant caused a draft of
said agreement to be made and submitted to plaintiffs, and
they approved it, but asked to add a clause concerning a
division of payments between themselves; that defendant
consented, and plaintiffs took the draft away, agreeing to
156 Linington v. Strong et al.
Statement of the case.
copy it with the addition above named only, and returned
with papers which they represented to defendant were such
copies, with that addition only ; that defendant [in good faith
relied upon said representations, and] was deceived by such
representations, and thereby induced to and did sign said
papers without reading them, [and was not himself guilty of
the want of reasonable prudence and caution in not reading
such papers ;] and if the jury further believe, from the evi-
dence, that such representations were false, and that plaintiffs
had put into such alleged copies conditions not in the said
draft, and not known or consented to by the defendant, and
that the contract sued on [in this case] is one of the papers
to which the defendant's signature was so obtained, then the
jury should find for the defendant.
"2. The court further instructs the jury that the provision
in the contract sued on, requiring the defendant to verify his
quarterly statements by affidavits, and the clause, 'and also
agrees to pay the royalty on at least 2500 dozen of said pincers
each year,' are material conditions not in the draft offered
in evidence [by the defendant ;] and the jury are instructed
that the question of the materiality of these conditions is for
the court, and not for the jury, and the jury must, on this
point, be governed by the instructions of the court ; and if
they believe, [from the evidence,] that the signature of de-
fendant to the contract sued on was obtained in the manner
set forth in the first instruction for the defendant, they should
find for the defendant, even though they should be of the
opinion that there was no material difference between the con-
tract sued on and the draft offered in evidence by defendant.
"3. The jury are instructed, as a matter of law, that
when two parties have agreed to the terms of a contract be-
tween them, and it has been reduced to writing, if one of the
parties undertakes to make copies of the contract for the sig-
natures of the parties, he is bound to do it truly ; and if he
presents to the other papers which he assures that other are
Linington v. Strong et at. 157
Brief for the Appellant.
copies of such contract, it is not negligence in that other to
sign without reading.
"4. The jury are further instructed that if they believe,
from the evidence, that the signature of the defendant was
obtained to the contract sued on in the manner set forth in
the first instruction given on behalf of the defendant, and a
judgment was rendered against him for one or more install-
ments due thereon before he discovered the fraud, such judg-
ment is no bar to his raising the defence of fraud to suits
brought for subsequent installments.
"5. The jury are further instructed that if they believe,
from the evidence, that plaintiffs made the representations
described in the first instruction given on behalf of defend-
ant, and that said representations were in fact untrue, then
it makes no difference whether they knew of the falsity of
such representations, or not."
The court refused to give the third, fourth and fifth in-
structions so asked by the defendant, and refused to give the
first and second instructions as asked, but modified them by
adding the words in brackets, and gave them (the first and
second) as modified, to which ruling of the court the defend-
ant at the time excepted. And thereupon the jury returned a
verdict for the plaintiffs for $744. The defendant moved for
a new trial, which motion was denied, and final judgment
entered on the verdict. The Appellate Court for the First
District, on appeal, affirmed the judgment of the Superior
Court, and the defendant brings the case to this court by a
further appeal.
Mr. F. Q. Ball, for the appellant:
When this case was first before the Appellate Court, that
court decided that there were two material variations between
the contract sued on and the original draft. This became
res judicata, and was no longer open to discussion in this
158 Linington v. Strong et al.
Brief for the Appellees.
case. Ward v. Johnson, 5 Bradw. 30 ; Older shaiv v. Knowles,
6 id. 330.
It is not indispensable to the right to rescind a contract
that the party making the representations knew they were
false, provided they are material, and the other party had a
right to rely upon them, and did, and was deceived. Allen
v. Hart, 72 111. 105.
If one party is trusted to reduce the contract to writing,
he is bound to do it truly, and any variation from it materi-
ally affecting the other party, if not known to him, is a clear
fraud. Botsford v. McLean, 45 Barb. 487.
Messrs. Smith & Burgett, for the appellees :
The rejected evidence was wholly irrelevant. Appellees
did not contend that appellant had even made one pincer, —
they asked only for the minimum royalty fixed by the con-
tract.
To authorize the setting aside of a written instrument on
the ground that the character or contents of it were unknown
to a party when he signed it, and that he was deceived and
misled into executing it, the rule is, that the facts must be
established beyond controversy, and not simply by a prepon-
derance of evidence. Railroad Co. v. Shay, 82 Pa. St. 198
Edmunds Appeal, 59 id. 220 ; Martin v. Berens, 67 id. 460
Tufts v. Lamed, 27 Iowa, 330 ; Vary v. Shay, 36 Mich. 388
Ranney v. McMidlen, 5 Abb. (N. C.) 246 ; Wilson v. Deen, 74
N. Y. 531; Albany City Bank v. Martin, 56 How. Pr. 500;
Savings Inst. v. Burdick, 20 Hun, 104; Moran v. McLarty,
75 N. Y. 25 ; McClellan v. Sanford, 26 Wis. 595 ; Kercheval v.
Doty, 31 id. 476; Lavassar v. Washburne, 50 id. 200; Wiles
v. Harshaw, 8 Ired. Eq. 308 ; MpMahon v. Spangler, 4 Eand.
51 ; Adams v. Robertson, 37 111. 45 ; Stampofski v. Hooper,
86 id. 321; Faucettv. Currier, 115 Mass. 20; 109 id. 79;
2 Wharton on Evidence, sees. 934, 1243; 80 111. 28; 78 id.
342.
Linington v. Strong et at. 159
Opinion of the Court.
Mr. Justice Dickey delivered the opinion of the Court :
This case has been twice tried in the Superior Court of
Cook county, the first trial resulting in a judgment in favor
of the defendant, which was reversed by the Appellate Court
for the First District, and the cause remanded. {Strong et al.
v. Linington, 8 Bradw. 436.) On the cause being remanded
another trial was had, resulting in a verdict and judgment
in favor of the plaintiffs, and this last judgment has been
affirmed by the Appellate Court.
It is contended by the appellant, that the Appellate Court,
by its judgment when this case was first before it, decided
that there were tivo material variations between the contract
sued on and the original draft thereof, and that the question
of the materiality of these variations became res judicata,
and was no longer open to discussion either in the Superior
or in this court. The judgment of the Appellate Court can
have no such effect in this case, for the reason that it was
not final. The defendant below (appellant here) could not
have maintained an appeal or writ of error to review that
judgment of the Appellate Court, and the appellees here
could not have their own judgment reversed, and it not being
final as to one party, could not be so held as to the other.
If one party is concluded by a judgment, the other must be
equally concluded.
On the trial the defendant offered to prove that he only
made 9135 pincers, and that he ceased to manufacture them
after a certain time, which, on objection, the court refused to
allow. Under the contract upon which the suit was brought
the defendant was bound to pay to the plaintiffs a royalty of
$1.44 per gross on at least 2500 dozen of pincers each year,
whether he made and sold that many or not, and consequently
the proposed and rejected evidence, as the case was presented
to the court, was wholly irrelevant, and there was no error in
refusing to hear the same.
160 Linington v. Strong et al.
Opinion of the Court.
The appellant also urges that the Appellate Court erred in
not reversing the judgment of the Superior Court for error in
respect to the instructions given and refused. Complaint is
made as to the first instruction given for the plaintiffs, which
is to the effect that a party executing a written contract should
exercise reasonable care and prudence to learn its nature and
contents before signing it, by reading the same, if capable of
reading, and that he would not be excused for his want of care
and prudence in signing a contract without reading it, unless
he was induced to do so by willfully false statements of the
party procuring his signature. It is evident that the defend-
ant here was seeking to avoid his contract for fraud on the
part of the plaintiffs, or one of them. This is quite apparent
from the defendant's first instruction, to the effect that fraud
vitiates all contracts. At law an intent to deceive must exist
to constitute actual fraud. Eepresentations, though untrue,
if not made with a knowledge of their falsity, can not be said
to constitute fraud where the contracting parties occupy no
i fiduciary relation or position of confidence or trust towards
each other. (Sims v. Klein, Breese, 234, *302 ; White v. Wat-
kins, 23 111. 480; Allen v. Hart, 72 id. 104; Fauntleroy et al.
v. Wilcox et al. 80 id. 477 ; Merw'ui v. Arbuckle, 81 id. 501 ;
Tone v. Wilson et al. id. 529 ; Wharf v. Roberts, 88 id. 426 ;
St. Louis and Southeastern Ry. Co. v. Rice, 85 id. 406.) The
use of the word "willfully, " in relation to the statements relied
on in this case as constituting fraud, can not vitiate the in-
struction. The statements to which this word is applied were
claimed to have been, that the triplicates presented for execu-
tion were correct copies of the original draft of the contract,
except as to a matter not affecting the defendant's interest
in the least, and if they were false, the party making them
must have known their falsity.
No error is perceived in the modification of the appellant's
first and second instructions, nor in refusing the others.
What has been said in regard to the plaintiffs' first instruc-
Palmer v. Snell. 1G1
Syllabus.
tion applies to the defendant's fifth instruction. What is
negligence in signing a contract without reading the same, is
not a question of law, but one of fact for the jury, to be
judged of from the peculiar facts and circumstances of each
case. In such a case it is hardly proper to select certain
facts, and tell the jury that they afford no evidence of negli-
gence or want of proper and reasonable care.
Without noticing every point, it is sufficient to say that we
find no error in the record calling for a reversal, and the judg-
ment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
Sarah M. Palmer
v.
Thomas Snell.
Filed at Springfield September 27, 1884.
1. Pttbchaseb from mortgagor — whether he can avail of a promise by
the mortgagee to the mortgagor to make a release. A verbal promise by
the mortgagee to the mortgagor, to release one of several mortgaged tracts
in the event of a sale of the same by the latter, can not be enforced by a
purchaser of such tract under execution, who, after his purchase, receives
a deed from the mortgagor without any consideration, where the land is not
purchased in reliance on such promise, and the purchaser in no way altered
his condition in expectation of such release.
2. Decbee— as against one not a party. On the foreclosure of a mort-
gage a purchaser from the mortgagor of one of several mortgaged tracts is not
entitled to a decree requiring a purchaser of the other tracts, who assumed
payment of the mortgage, to pay the same, when the latter is not made a
party to the suit. A decree can not be rendered against one not made a party
to the suit either by the original bill or by cross-bill.
3. Maeshaling assets— compell ing mortgagee to first exhaust a par-
ticular security. The rule of equity which compels a resort to a particular
one of two funds for a creditor's benefit, in favor of another who can reach
but one of them, will not be enforced when it trenches upon the. rights or
operates to the prejudice of the party entitled to the double fund.
11—111 III.
162 Palmer v. Snell.
Brief for the Appellant.
4. A mortgagee's right to a prompt foreclosure of his mortgage will not be
impeded or delayed by compelling him to first resort to a personal remedy
he may have against a purchaser of a portion of the mortgaged premises from
the mortgagor, who assumes payment of the mortgage debt. The most that
the subsequent purchaser of the remaining portion of the land can ask, is to
have the mortgaged premises sold in the inverse order of alienation.
5. Limitation — act of 1839 — as between holder of equity of redemption
and mortgagee. A purchaser of the equity of redemption from a mortgagor
can not invoke the Limitation act of 1839 to defeat a foreclosure of the mort-
gage. That statute does not apply to such a case.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of De Witt
county ; the Hon. Lyman Lacey, Judge, presiding.
Messrs. T. F. Tipton & Son, for the appellant :
The court erred in not releasing the ten acres, as asked.
Where one person enters into a simple contract with another
for the benefit of a third person, the latter may maintain an
action for a breach of such contract, and such contract is not
within the Statute of Frauds. Brown v. Short, 19 111. 88;
Beasley v. Webster, 64 id. 465 ; Babbermann v. Wiskamp, 54
id. 179 ; Steele v. Clark, 77 id. 473 ; Eddy v. Boberts, 17 id.
505; Bunn v. Strait, 19 id. 89; Bristow v. Lane, 21 id. 194.
Where a person takes a conveyance of land from a mort-
gagor, containing a provision that he is to assume and pay the
mortgage debt, the holder of the mortgage debt may enforce
payment of him personally. Hayward v. Gunn, 82 111. 390 ;
Irvin v. Wood, 37 id. 512 ; Cumberland v. Codrington, 3 Johns.
Ch. 254 ; Doiv v. Peters, 3 Edw. Ch. 140 ; Burr v. Beers, 24
N. Y. 178.
WThere the owner of land mortgages it, and afterwards sells
and conveys it subject to the mortgage, and the purchaser
assumes the mortgage as a part of the purchase money, the
latter becomes personally liable for the payment of the debt
of the former to the holder of the mortgage. Hartley v. Har-
rison, 24 N. Y. 170; Russell v. Bister, 3 Seld. 171; Halsey
v. Bead, 9 Paige, 446 ; Marsh v. Pike, 10 id. 595 ; Cornell v.
Palmer v. Snell. 163
Brief for the Appellee.
Prescott, 2 Barb. 16 ; Bhjer v. Munholland, 2 Sandf. Ch. 478 ;
Ferris v. Crawford, 2 Denio, 595.
A decree for a deficiency may also be had over against a
grantee from the mortgagee. Halsey v. Read, 9 Paige, 446 ;
Curtis v. Tyler, id. 432; King v. Whitely, 10 id. 465; Vail v.
Foster, 4 Comst. 312; Belmont v. Cornan, 22 N. Y. 438.
The undertaking of the grantee to pay the incumbrance is
a collateral security acquired by the mortgagor, which inures,
by equitable subrogation, to the mortgagee. Burr v. Beers,
24 N. Y. 178 ; Trotter v. Hughes, 12 id. 74; 1 Jones on Mort-
gages, sec. 755 ; Thompson v. Thompson, 4 Ohio, 333 ; Van-
Meters v. Van Meters, 3 Gratt. 148 ; Schlake v. Greaud, 19
La. Ann. 125; Klapiuorth v. Dressier, 2 Beasley, 62.
Where a purchaser from a mortgagor assumes the debt as
a part of the purchase money, the law implies a promise on
his part to indemnify the grantee against the mortgage debt.
Sheeler v. Hardin, 25 Ind. 2S6 ; Gale v. Wilson, 5 Bep. 667 ;
Jeivett v. Draper, 6 Allen, 434 ; Braman v. Dawes, 12 Cush.
227; Townsend v. Ward, 27 Conn. 610.
A creditor having two funds to which he may resort for
payment, may be required to first exhaust the one in which
he has an exclusive interest. Ladd v. Griswold, 4 Gilm. 25 ;
Wise v. Shepherd, 13 111. 41 ; Hunter v. Whitfield, 89 id. 229;
Bispham's Eq. 398, sec. 340.
Mr. B. A. Lemon, for the appellee :
Adams and Kitchen are not parties to this suit, and were
not necessary parties, for the reason they had no interest.
The mortgagor can make no disposition of the mortgaged
premises which can in any manner interfere with or impair
the mortgagee's right to a prompt foreclosure. Meacham v.
Steele, 93 111. 135.
The rale for marshaling assets is never enforced where it
trenches upon the rights or operates to the prejudice of the
party holding the double fund, or works injustice. (Sweet v.
164 Palmer v. Snell.
Opinion of the Court.
Bedhead, 76 111. 374.) This rule has been fully recognized
and applied by requiring the sale of mortgaged premises in
the inverse order of alienation. Matteson v. Thomas, 41 111.
110 ; Iglehart v. Crane, 42 id. 261 ; Baird v. Jackson, 98 id.
78 ; Warner v. DeWitt Nat. Bank, 4 Bradw. 305.
The proposition to release was a mere gratuitous offer, not
acted on. Bush v. Sherman, 80 111. 160; Bigelow on Estop-
pel, 480, 560.
Mr. Justice Sheldon delivered the opinion of the Court :
Thomas Snell filed his bill in equity, in the circuit court
of DeWitt county, to foreclose a mortgage upon three small
tracts of land. The mortgage was originally given by one
Smith Taylor and wife, to one William B. Smith, to secure a
debt of $4500. The mortgagee sold and assigned the mort-
gage notes to one George Dietrich, and the latter sold and
assigned them to Snell. All the defendants were duly served,
and the bill taken for confessed against them, except Sarah
M. Palmer, who appeared and answered the bill, and filed a
cross-bill, admitting the execution of the notes and mortgage,
and the assignments, as alleged, and setting forth that her
late husband, Ezekiel H. Palmer, in his lifetime, and after the
execution of the mortgage, purchased from the mortgagor the
ten-acre tract of land described in the mortgage, and that there
was a verbal agreement between the mortgagor and mortgagee
for the release of that ten acres from the mortgage upon pay-
ment of a certain, portion of the mortgage debt ; that the mort-
gagor did make that payment, as agreed, but that the release
was never made ; that Ezekiel H. Palmer afterward died
testate, leaving said Sarah M. Palmer his widow, who is his
executrix and sole devisee. The circuit court, on hearing,
entered a decree of foreclosure as to all the mortgaged prem-
ises except said ten acres, and as to that granted the prayer
of the cross-bill, cancelling the mortgage as to that tract.
This decree was reversed by the Appellate Court for the Third
Palmer v. Snell. 1G5
Opinion of the Court.
District, and upon the cause being remanded to the circuit
court, a hearing was again had, and a decree of foreclosure
ordering sale in the inverse order of their alienation as to all
the mortgaged premises was entered. This second decree was
affirmed by the Appellate Court, and the present appeal taken
by Sarah M. Palmer to this court.
The alleged agreement for a release of the ten acres from
the mortgage was of too vague and indefinite a character to
entitle it to be relied upon. All the testimony respecting it
is that of Taylor, the mortgagor, who states that at a con-
versation with Smith, the mortgagee, the latter agreed to
release the ten acres if he (Taylor) had a chance to sell it,
and would pay a certain amount of the debt ; that he had
sold it to one Colliver, but when they came to close the trade
"Palmer came in with a judgment and stopped the sale;"
that he paid the money to Smith he agreed to pay ; that he
told Palmer of the agreement with Smith for a release, and
Palmer said he would get the release from Smith. Taylor
made a deed of the ten acres to Palmer, but received no con-
sideration for it. The deed was made June 18, 1868. The
sheriff's deed to Palmer of the land, made under execution
sale against Taylor, bears date June 9, 1868, — so that it
appears Taylor did not sell the land to Palmer, but the sheriff
sold it to him, under an execution in favor of Palmer, against
Taylor, and that after the title had become vested in Palmer
by the making of the sheriff's deed, Taylor made a deed for
the land to Palmer, receiving nothing therefor. Palmer, then,
did not purchase the land in reliance upon any agreement to
release. His purchase under execution did not at all come
within the purview of the alleged agreement to release. The
alleged agreement was to release the ten acres if the mort-
gagor found an opportunity to sell it, — the mortgagee evi-
dently being willing, in such a case, to aid the mortgagor,
and may be benefit himself, in enabling the mortgagor to
realize upon some of the property. To release upon an exe-
166 Palmer v. Snell.
Opinion of the Court.
cution sale against the mortgagor would not come within the
contemplation of such an agreement, and a purchaser at such
a sale would have no right to rely upon an agreement of that
kind. Palmer paid nothing upon the expectation of such a
release to be made, — did no act and in no way altered his
condition upon such expectation, more than to gratuitously
accept a deed for land to which he already had the title.
We perceive no equity which entitles appellant to call for a
release of the ten acres from the mortgage.
Appellant makes a claim, which is manifestly without foun-
dation, that there should first have been resort to other holders
of the equity of redemption as having assumed the payment
of the mortgage debt, or that she should have been subro-
gated, to the mortgagee's claim of personal liability against
them. Taylor, the mortgagor, sold and conveyed a part of
the mortgaged premises to Parker S. Adams, the deed con-
taining a covenant that the grantee assumed to pay the mort-
gage debt, and Adams afterward conveyed the same lands
to John Kitchen, with a similar covenant in the deed, and
Kitchen still afterward conveyed to James T. Snell, but with-
out any such covenant in the deed, and no agreement of any
kind to that effect. Adams and Kitchen are not parties to
this suit, and of course there could be no decree against them.
The witness John Kitchen, in his deposition, does say some-
thing about James T. Snell assuming the mortgage debt, but
his testimony is very loose and carelessly given, and, taken
altogether, shows quite clearly that there was no assumption
by Snell of payment of the mortgage debt, — nothing more
than buying the land subject to the incumbrance. But even
had James T. Snell assumed the payment of the mortgage
debt, so as to have given a right of resort to him, personally,
to the mortgagee for the mortgage debt, the rule here invoked,
which compels a first resort to a particular one of two funds
for a creditor's benefit, who can reach but one of them, would
not be applied in such a case as this, so as to require, first,
Davidson v. Reed et al. 167
Syllabus.
the exhaustion of the personal remedy against Snell. This
rule will not be enforced whenever it will trench upon the
rights or operate to the prejudice of the party entitled to the
double fund. (Sweet v. Redhead, 76 111. 374.) The mort-
gagee's right to a prompt foreclosure of his mortgage is not
to be impeded by compelling a first resort to any personal
remedy the mortgagee may have. Further, the cross-bill does
not claim any such affirmative relief as that which we have
just considered, neither are any facts set forth in the cross-
bill, or in the answer, upon which any such relief could be
predicated. The rule for the marshaling of assets has been
applied in the decree in this case, which directs that the tract
in which appellant has an interest be offered for sale last and
the other tracts first. This is all to which appellant is entitled.
There is evidently nothing in the case entitling appellant,
the holder of the equity of redemption, to set up seven years'
possession and payment of taxes upon the land, in bar of the
foreclosure of the mortgage. The Limitation law of 1839 has
no application to such a case. Hagan v. Parsons, 67 111. 170.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Daniel Davidson
v.
John Reed et al.
Filed at Springfield September 27, 18S4.
1. Dedication — how made to appear. A dedication of land to the pub-
lic for any public use may be shown by grant, by user, or by the acts and
declarations of the owner, coupled with evidence of acceptance by the public.
But to be availing, there must be evidence of an intent to dedicate. No par-
ticular form or ceremony is necessary. All that is required is the assent of
the owner of the land, and the fact of its being used for the public purposes
intended by the person claimed to have made the dedication.
168 Davidson v. Reed et al.
Opinion of the Court.
2. Same — dedication of ground for burial purposes — whether estab-
lished. Where the owner of a quarter section of land as early as 1844 buried
a child in a corner thereof, since which time the same has always been used
by the people of the neighborhood as a public burying place, and the declara-
tions of such owner showed an intent to devote the land to such use, and the
subsequent owners of the quarter section of land made no objection to such
use, but recognized the same as a public burial place, it was held, that these
facts were sufficient to show a dedication of the land so used, to the public,
for a place for the interment of the dead.
3. Injunction — to prevent defacing and meddling with graves. A court
of equity will enjoin the owner of land from defacing and meddling with
graves on land dedicated to the public for burial purposes, at the suit of any
parties having deceased relatives or friends buried therein.
4. Parties — on bill to protect burying ground. Two persons, residents
in the neighborhood of a public burying ground, having friends buried there,
filed a bill to enjoin the party owning the tract of land on which it was located
from defacing the graves, and to preserve the ground for the public use for
burial purposes: Held, that they could maintain the bill in their names,
for the benefit of themselves, as well as if all others directly interested had
joined.
Writ of Error to the Circuit Court of Cumberland county ;
the Hon. William C. Jones, Judge, presiding.
Messrs. Clark & Clark, for the plaintiff in error.
Messrs. Craig & Craig, for the defendants in error.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in equity, brought to enjoin Daniel David-
son, the defendant, from defacing or meddling with certain
graves in an alleged grave yard in Cumberland county, on
land belonging to the defendant. The bill also prayed for a
decree declaring that the burying ground had been dedicated
to the public. Upon a hearing on the bill, answer, replica-
tion and evidence, the court rendered a decree as prayed for
in the bili, and the defendant sued out this writ of error.
It is contended by the defendant that the evidence was not
sufficient to establish the fact that the land in question had
been dedicated to the public for a burying ground. What
Davidson v. Eeed et al. 169
Opinion of the Court.
shall constitute a dedication of land to the public has been
considered and determined by this court in several cases. In
Marcy v. Taylor, 19 111. 635, it was held that dedication of a
highway may be proven in various ways, — by grant, by user,
or by the acts and declarations of the owner, — and that no
particular time is necessary for evidence of dedication, but to
be availing there must be an intent to dedicate. In Rees v.
City of Chicago, 38 111. 327, it was also held that a dedication
is to be proved, not alone by a deed, but by matter in pais,
consisting of the acts and accompanying declarations of the
owners of the land alleged to be dedicated. Such acts,
coupled with evidence of acceptance by the public, may make
a case of dedication. In City of Cincinnati v. White's Lessee,
6 Pet. 431, it is declared that no particular form or ceremony
is necessary in the dedication of land to public use. All that
is required is the assent of the owner of the land, and the
fact of its being used for the public purposes intended by the
appropriation. In Hunter v. Trustees of Sandy Hill, 6 Hill,
407, it was held that "dedication * * * is the act of
devoting or giving property for some proper object, and in
such manner as to conclude the owner." It was also held
that lands may be dedicated to persons and charitable pur-
poses, as well as for public ways, commons, and other ease-
ments in the nature of ways, so as to conclude the owner who
makes the dedication. In Godfrey v. City of Alton, 12 111.
29, in the discussion of the question of dedication, it was
held that the Statute of Frauds does not apply to the dedica-
tion of ground to the public. A dedication may be made by
grant or written instrument. It may be evidenced by acts and
declarations, without writing. No particular form is required
to establish its validity, it being a question of intention.
Tested by the principles announced in the authorities cited,
it only remains to be seen whether the evidence authorized
the decree that the land in question had been dedicated to
the public, to be used as a place for the burial of the dead.
170 Davidson v. Eeed et al.
Opinion of the Court.
James McKnight originally owned the south-west quarter
of section 21, township 10, north, range 10, east, in Cumber-
land county. The burying ground is located near the south-
east corner of the land. As early as 1844 McKnight buried
a child on the land in question, and since that time it has
been known as the "McKnight grave yard, " and has been used
by the neighborhood as a burying ground. While McKnight
owned the land he buried a wife and two children there.
Eeed testified that McKnight told him "he expected the neigh-
bors would want to bury there, as we had commenced it."
He also testified that he and McKnight talked of staking off
and fencing the ground, but they neglected to do it. McKnight
sold the land to Ehodes, and while Ehodes owned the land the
dead were buried there, as before. He sold to Scott, and
Scott to Collins, and Collins sold to the defendant. Collins,
while he owned the land, buried a child in the grave yard.
Indeed, from 1844 the land in question has been known, used
and recognized by the different owners and the public as a
public burying ground. While Collins owned the land he
said if the people in the neighborhood would clear and fence
it, he would give them a half acre. Ehodes also, as he tes-
tified, offered to give the grave yard if the people would fence
it. It was also proven that the defendant offered to give the
land occupied by the graves if the people would fence it.
The only conclusion to be reached from all the evidence is,
that McKnight, when he owned the land, established a grave
yard, and intended to dedicate to the public the particular
tract in question, to be used as a place for the burial of the
dead. It is true that when he sold the land no reservation
was made in the deed, but the subsequent purchasers all had
notice of the existence of the burying ground, and purchased
subject to the rights the public had acquired in and to the
property. In the case of City of Cincinnati v. White's Lessee,
supra, it is said that all that is required is the assent of the
owner of the land, and the fact of its being used for the
The People ex rel. v. Trustees of Schools. 171
Syllabus.
public purposes intended by the appropriation. The assent
of the owner, McKnight, that the land should be appropriated
for the burial of the dead, is clear and manifest. That the
public accepted and used the land for the public purpose for
which it was designated by the owner, is also beyond dispute.
It has been suggested that the bill can not be maintained in
the names of the two complainants. The complainants were
residents of the neighborhood. They had friends buried in
the burying ground, and were thus interested in preserving, for
themselves and the public, the burying ground as it had been
established, and we are of opinion that they had the right to
sue in behalf of themselves and others having a like interest.
(Beatty <# Ritchey v. Kintz, 2 Pet. 585.) The bill was brought,
and in our judgment properly, for the protection of the rights
of the people in that particular locality, and we perceive no
reason why it may not be maintained in the names of a part
for the benefit of all, as well as if all directly interested had
joined in the bill.
The decree of the circuit court will be affirmed.
Decree affirmed.
The People ex rel. E. B. Brewster et al.
v.
Board of Trustees of Schools.
Filed at Springfield September 27, 1884.
1. Cokp oration— legality of its existence — in what proceeding it may
be questioned. Where the legality of the existence of a corporation is in-
tended to be questioned, it must be done by a direct proceeding against it in
the nature of a quo warranto or scire facias. Such question can not be
tried in a mandamus proceeding.
2. So in a proceeding by mandamus to compel the school trustees of a
township to appoint appraisers to value school property preparatory to a divi-
sion between an old and a new school district, the court has no jurisdiction
to inquire into the legality of the organization of the new district.
172 The People ex rel. v. Trustees of Schools.
Opinion of the Court.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of Ma-
coupin county ; the Hon. Wm. E. Welch, Judge, presiding.
Messrs. Corn & Shirley, Messrs. Einaker & Einaker, and
Mr. A. H. Bell, State's Attorney, for the appellants.
Messrs. Palmer, Chapman & Corn, for the appellees.
Mr. Justice Walker delivered the opinion of the Court :
This was an application for a writ of mandamus, to compel
school trustees in a township in Macoupin county to appoint
appraisers to value school property between an old and new
school district. Defendants demurred to the petition, and
the circuit court held it insufficient, and dismissed the appli-
cation.
The petition alleged that the school district was formed of
portions of two townships, — one in Montgomery county and
the other in Macoupin county ; that all steps necessary for
the organization of the district had been observed, under the
33d section of the School law, as amended in 1881, (Sess.
Laws, 140 ;) that directors had been elected, and other steps
taken to complete the organization ; that the petition for the
new district was presented to the several boards of trustees
of schools of each township in which a portion of the new
district lay, at their regular annual meetings, and the appli-
cation was heard, and all the boards of trustees, except that
of township 10, north, range 6, west, concurred in granting
the prayer of the petitioners ; that they appealed from their
decision to the county superintendent of Macoupin county ;
that he decided the best interests of the district required the
establishment of the new district, and established the same ;
that his order establishing the district was recorded by the
several boards of school trustees, and an election was called,
by proper notices, and a board of directors was elected in
The People ex rel. v. Trustees of Schools. 173
Opinion of the Court.
and for the new district, and they organized as a board of
school directors ; that there was property in the districts in
township 10, north, range 3, west, to which the new district
was entitled, and it was the duty of the board of school
trustees of that town to appoint appraisers to value the same
preparatory to a division ; that they, on a proper request,
had refused, and a writ of peremptory mandamus was prayed.
It is provided by section 33, that if on the day of the reg-
ular meeting of the trustees the provisions of the section shall
have been complied with, they shall hear the same, and grant
or refuse the prayer of the petition. "But the petitioners, or
the legal voters who have appeared before the trustees at
the meeting when the petition was considered and opposed,
shall have the right to appeal to the county superintendent
of schools, provided the party appealing files with the clerk
of the trustees a written notice of appeal within ten days after
final action upon the petition by the trustees." This provi-
sion giving the appeal is very indefinite as to the course to be
adopted on a hearing on the appeal. Nothing is prescribed
as to his action or as to the hearing before him.
Various objections are urged against the legality of the
organization of the district. It is urged that a number of
essential acts to the organization of a legal corporation are
wanting. It is claimed that inasmuch as the trustees in
township 10, north, range 6, west, rejected the petition for
the new district, its organization was defeated ; that the 33d
section of the School law, as amended in 1881, (Sess. Laws,
140,) relates alone to the organization of school districts from
territory which is all situated in the same county, and has
no reference to the organization of districts of territory partly
situated in several counties ; that it confers no such power,
and if it does, there are other irregularities that should defeat
the organization. Under the long, well established and uni-
form practice of this court, the objections urged can not be
considered in this collateral proceeding. When the legality,
174 The People ex rel. v. Tkustees of Schools.
Opinion of the Court.
or, rather, the existence, of a corporation is intended to be
questioned, it must be done by a direct proceeding in the
nature of a quo warranto or scire facias. In the case of
President and Trustees v. Thompson, 20 111. 197, it was said:
"It is also a general rule, that a corporation, acting as such,
can not be questioned collaterally, on the ground that it has
not complied with its charter." In the case of Rice v. Rock
Island and Alton R. R. Co. 21 111. 93, it was said: "The
party ought not to be permitted, in this collateral way, to
question the regularity of the organization of. the company.
If it has assumed to exercise corporate functions before it
had a right, by law, to do so, — if it has usurped franchises
not granted by the statute, — that should be more properly
inquired into by a direct proceeding to seize the franchises
to the people and dissolve the corporation. If in every suit
which the company may bring to enforce its rights it must
come prepared, over and over again, to show that its organi-
zation was formal and proper, it would lead to embarrass-
ments and inconveniences the most intolerable." Again, in
Tarbell v. Page, 24 111. 46, it was held, that "whilst it may
be true that a failure to file this certificate in the Secretary
of State's office may be such a non-compliance with the law
as would authorize the people to sustain a writ of quo war-
ranto or scire facias, and to oust the corporators from the
exercise of their franchises, it does not necessarily follow that
it is not, as to third persons, a corporation," — and the case
of Rice v. Rock Island and Alton R. R. Co. supra, was referred
to as announcing the rule that the regularity of the organiza-
tion of a corporation can not be questioned in a collateral
proceeding. Again, in the case of Renwick v. Hall, 84 111.
162, it was held that chancery has no jurisdiction when any
association or number of persons shall, within the State, act
as a corporation without being legally incorporated, to de-
termine the question whether such an association is legally
incorporated or not. That question, it is there said, may be
The People ex rcL v. Trustees of Schools. 175
Opinion of the Court.
tried by quo warranto, which is the proper remedy. That
was a case like this, where an effort had been made to form
a new school district from territory in two townships. The
new district had elected, as in this case, a board of directors.
The owners of real estate in the old district filed their bill in
equity, alleging the proceedings in the formation of the new
district were irregular and illegal, and in contemplation of
law no new district had been formed. The injunction was
dissolved and the bill dismissed on a hearing, and that decree
was affirmed by this court, on the ground that equity had
no jurisdiction to investigate the question. In the case of
McCarthy v. Lavasche, 89 111. 270, it was also held that the
legality of a corporation can not be attacked in a collateral
proceeding, and a stockholder, when sued, can not be heard
to insist the law under which the corporation was organized
was unconstitutional, or the body illegally organized.
Other cases might be quoted as recognizing the rule, but
those referred to are amply sufficient. As early as in 1844,
this court, in the case of Wilmans v. Bank of Illinois, 1 Gilm.
667, announced the same doctrine, nor has it ever been over-
ruled or modified, but has been constantly adhered to until
the present time, and the doctrine must govern this case.
A proceeding in mandamus is of no more comprehensive juris-
diction than a court of equity, and is as powerless to declare
a corporation is illegally organized. That proceeding was
inaugurated for wholly different purposes. We are aware of
no case which holds that in mandamus the court can exercise
any jurisdiction belonging to the proceeding by quo ivarranto,
nor if one could be found could we, in view of the numerous
decisions of this court, be expected to yield to it as authority.
The view we have taken of the case was not presented in the
Appellate Court or in this court ; but the doctrines of the
cases to which reference has been made so clearly govern
this case, that we feel constrained to give them application.
176 Chicago Building Society v. Haas et at.
Syllabus.
The corporation acting as such, and exercising the fran-
chises of a school district, and its organization being incapable
of attack in this proceeding, the circuit court had no power
to investigate that question, and it erred in sustaining the
demurrer to the petition, and the Appellate Court erred in
affirming the judgment of the circuit court, and the judgment
of the Appellate Court must be reversed.
Judgment reversed.
The Chicago Building Society et ah
v.
Elizabeth Haas et al.
Filed at Ottawa September 27, 1884.
1. Attorney and client — betrayal of his client's interests by the attor-
ney— remedy. An attorney at law, when acting in good faith and his client
makes no objection to his management of the cause, has the power to waive
or withdraw a defence and consent to judgment, but not to fraudulently sell
out his client's interests to the opposite party; and the courts will protect
suitors from the treachery of their solicitors, as far as possible.
2. Same — impeaching decree for fraudulent collusion between one's
attorney and the adverse party. A litigant's solicitor, for money received
from the adverse party, entered into a stipulation for the entry of a decree
against his client for a much larger sum than was due, without the knowledge
or consent of the client, and withdrew a meritorious defence, and allowed a
decree to be entered according to the corrupt agreement. The other party
had notice of the solicitor's want of authority and of his want of fidelity,
before taking the decree: Held, that the decree should be set aside for fraud
in procuring the same.
3. Limitation — bill of review. A party has the same time in which to
file a bill of review to set aside a decree as he has to prosecute a writ of error,
unless there be special facts requiring more prompt action.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county ; the Hon. Thomas A. Mohan, Judge, presiding.
Chicago Building Society v. Haas et at. 177
Statement of the case.
On July 11, 1871, Elizabeth Haas filed her original bill in
the circuit court of Cook county, against the Chicago Building
Society and one Luther L. Greenleaf, seeking to enjoin the
sale of her two certain lots under two deeds of trust given by
her and her husband to Greenleaf. The bill charged fraud
and usury in the several loans and in the notes and deeds of
trust. After stating two loans, (one for $6000, on eight per
cent per annum interest, and the other for $4000, on like
interest,) and the failure of the society to give her the full
face of the loans, and the giving of notes for much larger
sums than the sums pretended to have been in fact loaned,
the bill alleged that on or about May 14, 1873, she made
arrangements with the secretary and treasurer of the society
for a further loan of $4000. She and her husband were
required to execute new notes and trust deeds for the amount
of all the loans, when she was informed that the society held
to her credit $3745.89, from which she drew, in checks and
cash, from May 15, 1873, up to July 3, 1873, $2048.07, and
no more. The new papers consisted of two promissory notes,
each dated May 14, 1873, payable to the order of the society,
and for the sum of $12,381.60, making in all $24,763.20 for
the three loans, and each in installments of $103.18, matur-
ing monthly, for one hundred and nineteen months, with ten
per cent per annum interest on each installment after due.
These two notes were secured by two deeds of trust, given by
Mrs. Haas and her husband on two of her lots in the city of
Chicago. The bill further alleged that complainant, by May
14, 1873, paid back to the society $6198, and that from Sep-
tember 1, 1S72, to the middle of July, 1873, she received
from the society the total sum of $8748.70, and no more, of
which she paid back $2070.40. The bill was filed to have
an account taken of the sum she actually owed the society for
the money actually advanced to her, with lawful interest, after
allowing her credits for all payments, and for leave to redeem
12—111 III.
ITS Chicago Building Society v. Haas et at.
Statement of the case.
the lots by the payment of such sum, and to enjoin a threat-
ened sale by Greenleaf, the trustee.
On August 1, 1874, the defendants answered, denying all
the material allegations of the bill, and on the 11th day of the
same month the society filed its cross-bill, making Valentine
Haas, the husband of Elizabeth Haas, a defendant, seeking
a foreclosure of the two trust deeds. Mrs. Haas and her hus-
band answered the cross-bill, and the cause was referred to
the master to take proofs. On December 14, 1874, the cir-
cuit court entered a decree in the cases, dismissing the orig-
inal bill, and finding under the cross-bill that there was due
from Mrs. Haas and her husband the sum of $24,785.56 to
the society under the notes and trust deeds, and directed pay-
ment by a short day, and ordered a sale of the lots if such
payment was not made. From this decree Elizabeth Haas
and Valentine Haas appealed to this court, which affirmed
the same in all things except that part of it which provided
for ten per cent interest after its entry. The decree of the
circuit court was affirmed on the ground of the stipulation of
D. J. Leary, the solicitor of Mrs. Haas and her husband, con-
senting to a decree for the amount it was rendered. There-
upon Elizabeth and Valentine Haas, on January 16, 1878,
filed this their bill of review against the Chicago Building
Society and Greenleaf, to impeach and set aside the decree
upon the original and cross-bills, on the ground that it was
obtained by fraud and collusion with their said solicitor,
Leary. This bill, after setting out all the facts of the case
and the previous proceedings, alleged the retainer by com-
plainants of said Leary to prosecute the original bill and de-
fend in the cross-bill, and that he, on or about the 24th day
of November, 1874, while pretending to act as complainants'
solicitor, without their knowledge, consent or authority en-
tered into a corrupt agreement with the society and its officers
that it might take a decree on its cross-bill for $24,785.56,
in pursuance of which the decree sought to be impeached was
Chicago Building Society v. Haas et at. 179
Statement of the case.
made, when in fact complainants did not at that time owe the
society more than $7150, and that the excess above that sum
was composed of illegal and usurious interest charged by the
society against complainants; and that on October 17, 1876,
the mortgaged lots were sold under such decree by the master
in chancery, to the society, for $19,000. Beside the general
prayer for relief, an account was asked to be taken of the sum
actually due from complainants to said society, counting the
interest at six per cent, which was offered to be paid when
ascertained, and that on payment the deeds of trust and the
decree and master's sale be cancelled and set aside.
On the hearing, the circuit court found, specially, the facts
showing that the original decree was the result of a corrupt
and fraudulent agreement of the complainants' solicitor with
the building society that such a decree should be rendered,
made without authority, and in violation of his duty as a soli-
citor, and that his stipulation to give away his clients' rights
was a fraud upon them, and also finding that all the material
allegations of the bill, as amended, and the supplemental bill
to which the oro tenus demurrers were not sustained, were
true, as stated. The decree then provided as follows :
"It is therefore decreed that the decree entered in this
court December 14, 1874, in the cause wherein said Elizabeth
Haas was complainant, and the cross-bills described, and the
order modifying said decree, entered in this court September
18, 1S76 ; the sale made to said society October 17, 1876, by
the master, of said lots 2 and 7, and the report of such sale,
filed in this court October 21, 1876 ; the order confirming
such report, November 23, 1876; the order of December 12,
1876, appointing a receiver, and the order of December 23,
1876, confirming such appointment, and the other orders and
proceedings under and by virtue of said decree or consequent
thereon, made either before or since the bill in this cause was
filed, be and the same are hereby annulled, set aside and for
naught esteemed ; and it is ordered that such further pro-
180 Chicago Building Society v. Haas et al.
Statement of the case.
ceedings be had in said cause wherein said decree was ren-
dered upon said original bill filed by said Elizabeth Haas,
and the cross-bill and the supplemental cross-bill filed by said
building society, and upon the matters of supplement con-
tained in the original and supplemental bills filed- in this
cause by said Elizabeth Haas and Valentine Haas, as to jus-
tice shall appertain. And thereupon it is ordered that the
said stipulation, filed November 24, 1874, be and the same is
hereby stricken from the files of the court, as given without
authority, and a fraud upon the said Elizabeth Haas and
Valentine Haas. And it appearing that the said society is in
possession of the land described in said bills, and that until
the matter of the state of the account between said society
and said Elizabeth Haas is taken, the possession of said so-
ciety of said lands and said premises should not be disturbed.
It is therefore further ordered, that said reports of the mas-
ter in chancery, George Willard, be and the same are hereby
set aside and vacated, and that the taking of the account in
the premises between the said building society and the said
Elizabeth Haas, on just and equitable principles, from the
commencement of their dealings down to the present time,
should be referred to a master in chancery of this court. It
is ordered that it be referred to Horatio L. Waite, one of the
masters, to take and state said account ; that in taking said
account the master allow the said building society all sums
of money loaned by it to said Elizabeth Haas, and all ad-
vances made by it to purchase incumbrances, with interest
thereon at six per cent per annum, and for all other proper
charges, and for taxes and for tax liens, tax deeds and in-
surance, and interest thereon ; and that he charge it with all
payments made by her to it, all rents, issues and profits of
the real estate which it has received or by the use of ordinary
diligence it might have received, making rests for rents in said
account every six months, and following the rule adopted for
calculating interest on partial payments."
Chicago Building Society v. Haas et al. 181
Opinion of the Court.
From this decree the Chicago Building Society, the defend-
ants, appealed to the Appellate Court for the First District,
and that court having affirmed the decree, the defendants,
by a further appeal, bring the case to this court, and assign
various errors. The other material facts are stated in the
opinion of the court.
Mr. Wolford N. Low, Mr. Edward Koby, and Messrs.
Moore & Browning, for the appellants.
Mr. W. T. Burgess, for the appellees.
Mr. Justice Dickey delivered the opinion of the Court :
This is a bill to impeach a decree between the same par-
ties, for fraud in procuring the same. The grounds relied on
to establish the fraud are, that Leary, the solicitor of the
complainants in this case, for the sum of $356 paid him by
the building society, sold out his clients, and entered into a
stipulation that a decree should be entered against them for
the sum of $24,785.56, (a sum much greater than they owed,)
without their knowledge or consent, and that the society had
notice, before taking its decree for the sum agreed upon by
the solicitor, that he had no authority to make such stipu-
lation. There can be no question as to the treachery of the
solicitor to his clients, and it may be that he imposed upon
the officers of the building society, and obtained money from
them by false pretences or representations ; but if they were
ignorant, at the time, of the falsity of his representations,
there was enough to cause them to suspect his fidelity to his
clients. At any rate, before filing the stipulation and taking
their decree they had knowledge of the solicitor's want of
authority to make the stipulation.
Charles B. Brooke, secretary of the society, testifies that
about October 23, 1S74, Leary came to the office of the
society and proposed a settlement of the litigation, stating
182 Chicago Building Society v. Haas et al.
Opinion of the Court.
that Mrs. Haas had no further defence in the matter; that
she had given him a quitclaim deed of the property, in order
to assure him that he would be right in all he did, so that
he acted not only in that capacity, but also as her attorney ;
that a large loan had been made some time previous, in an-
ticipation of a settlement, and it was lying in bank at his
credit, and that if the society would come to an agreement
as to figures, he would bring a certified check ; that on the
next day Leary came again, and went over the figures, and
agreed to them; that about two days later Leary called and
said there was some interest or commission due upon the
loan, and that he could not handle the money until that was
paid ; that this amount was $356, and neither he nor Mrs.
Haas had the money just then to advance, and asked that
the society advance this sum for a few days ; that by the
direction of some of the directors this sum was advanced to
Leary, who gave his note therefor, and executed and delivered
the following stipulation :
"The Chicago Building Society ^
v. >
Elizabeth Haas and Valentine Haas. )
"D. J. Leary, as attorney for the above named defendants,
and for himself, hereby stipulates and agrees with the Chi-
cago Building Society that he holds a good and sufficient
authority from Elizabeth and Valentine Haas, the aforesaid
defendants, to make the following stipulation and agreements :
It is hereby stipulated and agreed by Elizabeth Haas and
Valentine Haas, that a decree of the said court be entered as
of record in favor of the Chicago Building Society, for the
amount of $24,785.56, due October 15, 1874, as soon as such
decree can be drawn. And it is hereby further stipulated and
agreed, that the said Elizabeth Haas and Valentine Haas,
or D. J. Leary, as their attorney, will pay or cause to be paid
to the Chicago Building Society the sum of $30,000, on or
before the 31st day of October, A. D. 1874, in which case the
Chicago Building Society v. Haas et al. 183
Opinion of the Court.
said building society hereby stipulates and agrees to control
and procure three other trust deeds, securing an aggregate
sum of $5000, together with a certain judgment obtained
against the said defendants by the Chicago Building Society,
and as soon as said decree can be confirmed by the court, to
give the said defendants, or said Leary, as their attorney, a
full and entire release of all claims now held by said society
against the property involved in this suit, and all other prop-
erty owned or possessed by the said defendants.
D. James Leary,
Solicitor for Haas. "
This stipulation bears no date, but the proof shows it was
executed and delivered October 27, 1874, though not filed
until November 24, 1874. With this stipulation, if made
rightfully and by authority of the parties, the further taking
of evidence before the master was unnecessary. That, alone,
would settle the rights of the parties. Notwithstanding this,
we find that on October 29, 1874, two days after this stipu-
lation was given, Brooke, the secretary, appeared before the
master, and was sworn to his deposition. At the close of
Brooke's deposition, the master entered a memorandum that
the parties,, "by their attorneys, announced that they did not
desire to offer any further testimony. " Mrs. Haas had not
then been examined, and this stipulation was not filed with
the master, who filed his report October 30, 1874. On the
same day a second stipulation was filed, agreeing that the
evidence and master's report then on file might be with-
drawn, for the purpose of taking additional evidence before
the master. It seems strange that the solicitor for the build-
ing society, with the first named stipulation in his hands
controlling and settling the whole case, should consent to a
re-reference of the case to take further evidence, if the stipu-
lation was believed to have been given with the consent or
authority of the adverse parties. The parties again went
1S4 Chicago Building Society v. Haas et al.
Opinion of the Court.
before the master, and on November 6, 1874, Brooke was
recalled, and cross-examined at great length by Leary. On
the same day Mrs. Haas testified in her own behalf, and was
cross-examined fully upon the question at issue by the plead-
ings, but her attention was not called to this stipulation.
From the facts stated in Brooke's affidavit, made December
22, 1874, to procure the arrest of Leary, and his testimony
in this cause, it is evident that the stipulation would never
have been obtained unless Leary had got the $356.
It is said that the decree in the original case was not made
upon this stipulation. There is no direct proof as to this,
but the fact that the decree is for precisely the sum named
in the stipulation on file at the time of the hearing, makes it
evident that the court did not overlook the same. It was
before the court, and the court decreed in accordance with
it ; and this court, when the cause was before us, (80 111. 248,)
held that the decree entered was entered by consent.
There is no doubt but that the Haas had a meritorious
defence to the cross-bill. It seems to be conceded that the
notes and trust deeds contained usurious interest ; but it is
contended that it is competent for an attorney to waive such
a defence for his client. This the attorney may do when his
client makes no objection, and he acts in good faith ; but no
court can ever sanction the doctrine that an attorney has the
power fraudulently to barter away any of his client's rights
to the opposite party. On the contrary, it is the duty of the
courts to protect suitors from the fraud and treachery of their
attorneys or solicitors, so far as possible ; and a party having
knowledge of an attorney's fraudulent purpose or want of
authority, can not profit from his acts to the injury of his
client. In this case we hold, with the circuit court, that the
stipulation from Leary was the result of fraud and collusion
between the appellees' solicitor and the officers of the appel-
lant, and that the filing of the same in the cause without the
knowledge or consent of appellees, was a fraud, not only upon
Lehmann et at. v. Kothbarth. 185
Syllabus.
appellees, but also upon the circuit court and upon this court
when the case was presented for consideration.
It is also objected that the appellees were barred of relief
by laches in bringing their bill and bringing it to a hearing.
A party has, by law, the same time in which to file a bill of
review to set aside a decree as he has to prosecute a writ
of error, unless there be special facts requiring more prompt
action.
Perceiving no substantial error in the record, the judgment
of the Appellate Court will be affirmed.
Judgment affirmed.
Alfred A. Lehmann et al.
v.
Paul Kothbarth.
Filed at ML Vernon September 27, 1884.
1. Appeal — whether involving a freehold or not. Where one of the main
objects of a bill in chancery is to recover an equitable freehold in land, —
or, in other words, to establish a resulting trust in a freehold estate, — a free-
hold is involved, and this court has jurisdiction of an appeal directly from
the trial court:
2. While it is true that a party can not invest this court with original juris-
diction of an appeal by merely alleging facts showing he claims a freehold,
without proof tending to establish such claim, yet where there is evidence
fairly tending to support such allegation, and the claim is made in good faith,
an appeal may be prosecuted directly to this court.
3. Trusts and trustees — agent of a trustee or guardian — when to be
held as a trustee. If an agent of a trustee acts fraudulently and collusively,
he may himself be treated as a trustee by construction, and as such held
accountable to the cestui que trust. If he secures to himself any benefit by
a breach of trust, he will be responsible for the property to the party entitled
to the beneficial interest. If by an abuse of his power as simple agent he
obtains possession of trust property, the cestui que trust may proceed against
him as a trustee.
4. Where the husband of an administratrix of an estate and guardian of
minor heirs, takes upon himself the exclusive control and management of
186 Lehmann ei al. v. Eothbarth.
Syllabus.
the estate, excluding his wife from any participation in the same, and makes
reports for her, and uses the trust funds, or places them to his own private
account, the heirs and minor wards may, in equity, call him to account for
the funds, etc., coming into his hands as agent of the administratrix and
guardian.
5. Same — reports made by husband of a guardian in her name — when
may be impeached. A husband of a guardian, who assumes an exclusive
agency of the trust funds and securities of the wards, and makes out reports
in his wife's name, not under oath, of the correctness of which she has no
knowledge, and is kept ignorant by him, which reports are approved by the
probate court, will not be entitled to the same protection under them, when
called on by the wards to account, as if made out in his own name, and he
was the legal guardian.
6. Same — guardian and ward — charge for taxes and repairs of home-
stead occupied by tenant for life. Where a husband of a guardian of minor
children, who assumed the entire management of the trust estate, in making
out reports to the probate court charged the wards with the taxes, and cost
of insurance and repairs of the homestead premises, occupied by him for a
residence, while his wife and the minors were absent a great part of the time
at their own expense, it was held, that such charge was unwarrantable, and
that in any event they should not have been charged with more than their
equitable share of such expenses.
7. Same — settlement with ward, after age — when may be opened. A set-
tlement pressed upon wards about the time of their becoming of age, by one
standing in loco parentis, and claiming to represent their mother and. lawful
guardian, from which the latter is forcibly excluded, should not be sustained,
except in so far as it is just and fair to them. If based chiefly on improper
charges against them, they should not be concluded by it.
8. Same — basis for restating account after settlement. On bill by wards
to set aside a settlement made by the husband of their guardian, with them,
shortly after their majority, for improper charges in his accounts, etc., on
granting the relief prayed, the court, in restating the account, should charge
the complainants with all payments made to them on the settlement, includ-
ing real estate taken by them at its cash value at the time it was received; but
the defendant should not be charged with any subsequent depreciation in its
value, and the proof of such property being turned over to the wards at an
excessive price should be clear and conclusive.
9. Same — trustee, when liable for interest. Where one chargeable con-
structively as a trustee, uses the trust funds in his private business, the same
as his own, he will be liable for interest on the same.
10. One in the possession of trust funds can not use them in his private
business for his own gain, and then relieve himself of liability to pay interest
on the same by falsely reporting in his accounting that he has them on hand,
and is unable to invest them.
Lehmann et al. v. Kothbarth. . 187
Statement of the case.
11. Evidence — bank account to show how much money a depositor has
at a given time. Where it becomes material to show how much ready money
a party who keeps a bank account has 6n hand on particular days, the state
of his bank account at the times in question is clearly competent and proper
evidence of that fact, and his bank account is admissible on the question.
12. Husband and wife — when settlement between, opened. Where a
husband comes into the possession and exclusive management of his wife's
estate, including her moneys, and practically excludes her for several years
from participating in its management and control, and by harsh treatment
and cruelty causes her to have a protracted sickness and great despondency,
and to file a bill for divorce, he will not be allowed to shield himself from
liability to account to her, by a settlement made with her in ignorance of her
just rights, when in a condition not capable of entering into a business mat-
ter of such importance. Such a settlement is a fraud upon her rights.
Appeal from the Circuit Court of Cook county ; the Hon.
Murray F. Tuley, Judge, presiding.
Frederick Lehmann died intestate July 12, 1872, leaving
Marie Lehmann, his widow, Ida Cudell, Alfred A., Oscar,
Edmund, Emma, Frederick and Justine Lehmann, his only
children and heirs at law, — the last two being children by a
former wife. The estate of Lehmann, real and personal,
amounted to near a half a million of dollars. All the chil-
dren except Frederick and Justine were minors at the time
of Lehmann's decease. On the 7th of August, 1872, Marie
was appointed administratrix of the estate and guardian of
the minor children, by the county court of Cook county, and
she thereupon assumed the duties of these trusts. On the
16th of July, 1873, she presented to the county court her first
accounts as administratrix, showing a balance in her hands,
after the payment of debts, of $215,936.41. Prior to the ren-
dering of these accounts, to-wit, on the 10th of June, 1873,
the said Marie intermarried with Paul Kothbarth, and on the
same day Justine Lehmann intermarried with Edward Koch, •
the partner in business of Kothbarth. In July, 1873, after
her marriage, Mrs. Kothbarth turned over the estate to Julius
Rosenthal, who, as her agent and attorney, had the exclusive
1SS Lehmann et at. v. Eothbarth.
Statement of the case.
control and management of it until in March, 1874:, when he
turned it over to her again, or, rather, to her husband, as
her agent. The amount thus turned over to him was over
$335,000, all of which was invested in interest bearing securi-
ties, except $11,000 in cash, then on hand. These securities
were kept in the Fidelity bank, and the cash was on deposit
in the International Bank of Chicago, where Eosenthal kept
his account, and the estate, in this condition, was turned over
to Eothbarth. His wife gave to him the key to the box con-
taining the securities in the Fidelity bank, and the account
with the International bank was continued by her husband,
in her name, for some time afterwards. He, from time to
time, drew checks on the fund in her name, signed by him,
as agent. These checks, or at least a part of them, were
made payable to his own order, and some of them were de-
posited to his own account, in his own bank. The business
was conducted in this manner until the 9th of November,
1874, when he closed his wife's account with the International
bank altogether, by transferring the balance then on hand to
his own account with Meadowcroft Bros., his own bankers.
The securities not converted or otherwise disposed of, were,
as before, kept in the Fidelity bank, in the name of Mrs.
Eothbarth, until in 1876, when, at his instance, they were
placed in his own name, in a different box, and so continued
until in the winter of 1879, when he made a final settlement
with his wife respecting her separate estate. He also, about
the same time, made. a settlement with her as guardian of
Edmund and Emma, upon the basis of her accounts as
guardian and administratrix, theretofore filed in and ap-
proved by the county court, as hereinafter mentioned.
On the 17th of January, 1876, Mrs. Eothbarth made her
second, and on the 14th of April her third and final report as
administratrix, which were severally approved by the court.
Her last report shows that she retained as her distributive
share of the estate, $74,992.08, and paid to each of the heirs
Lehmann et al. v. Rothbarth. 189
Statement of the case.
$21,426.31. Upon the filing and approval of this report
she was discharged as administratrix. Her first report as
guardian was made on the 6th day of May, 1876, from which
it appears she then had in her hands belonging to the five
minor children, the aggregate sum. of $223,618.40, the report
showing separate accounts with each ward. Her second re-
port as guardian, showing the state of her accounts with her
several wards, was filed July 25, 1877, from which it appears
she then had in her hands, belonging to them, the aggregate
sum of $228,860.23. On the 3d of September, 1879, Mrs.
Rothbarth presented to the court her third report, showing
the state of her accounts as guardian, and the fact that two
of her wards, Alfred A. and Ida, had attained their majority
since her last report, and asking to be discharged as guardian
as to them. This report and the accompanying accounts were
duly approved by the court. On the 9th of December, fol-
lowing, she resigned her guardianship as to Oscar, and one
Peter Schuttler was thereupon appointed Oscar's guardian in
her stead. Mrs. Rothbarth, on the 12th of the same month,
made her last report as guardian of Oscar, showing a balance
due him of $43,322.27, and the payment of that sum to her
successor, Peter Schuttler, as evidenced by his receipt. In
1879, Rothbarth made a final settlement with Alfred and Ida,
on the basis of the guardian reports by his wife, above men-
tioned, no account being rendered to them by him at the time.
In the settlement with them he paid them partly in real
estate belonging to himself, partly in property belonging to
the estate, and the balance in his own paper.
Shortly after the settlement between Rothbarth and his
wife, in December, 1879, with respect to the shares of Ed-
mund and Emma, as above stated, Mrs. Rothbarth com-
menced proceedings against him for a divorce, which she
obtained about the first of March following, — cruelty to her
being the ground of the divorce. Pending the divorce suit,
and just before it was granted, the parties came to an under-
190 Lehmann et al. v. Eothbarth.
Statement of the case.
standing with respect to their affairs, the consummation of
which was to be postponed until after the divorce, — and
this understanding was subsequently carried into effect, as
already stated. As a part of this settlement she released
all claims and demands, of whatsoever kind or nature, she
might have against him or his estate, the agreement being
prepared by his counsel, and executed by her at their in-
stance.
The original bill in this case was filed January 20, 1882,
by Alfred A., Oscar, Edmund and Emma Lehmann, and Ida
Cudell, against Paul Eothbarth, and Marie Lehmann, their
mother. By their bill complainants seek to recover certain
real estate, the legal title of which is in Eothbarth, but which,
as is alleged, was purchased by him with money belonging
to complainants, — or, in other words, complainants seek to
establish and enforce a resulting trust with respect to certain
real property, the legal title whereof is in Eothbarth. They
also seek to compel Eothbarth, as constructive trustee or
guardian, to account directly to them for the management
and disposition of their estate while under his control, charg-
ing that it has been wasted and impoverished by willfully and
fraudulently appropriating it to his own use. Marie Lehmann
answered, admitting all the material charges in the bill, and
also filed a cross-bill, setting up, substantially, the same
facts, and praying an accounting as to herself. Answers
were filed by Eothbarth to the original bill, and the cross-bill
of Mrs. Lehmann. He also filed a cross-bill praying the
accounts and reports made in the name of Mrs. Lehmann,
as guardian and administratrix, might be approved, and that
his title to the real property in controversy be confirmed.
The court, upon the hearing, decided in the main adversely
to Mrs. Lehmann and her children, and they, by the present
appeal, seek a reversal of the decree.
Lehmann et al. v. Kothbarth. 191
Brief for the Appellants.
Mr. A. M. Pence, and Messrs. Butz & Eschenburg, for the
appellants :
A freehold is involved, and hence an appeal lies from the
circuit court to this court. Railroad Co. v. Watson, 105 111.
217; Daly v. St. Patrick's Catholic Church, 6 Bradw. 468.
An agent receiving a personal benefit from the breach of a
trust, or where he has not confined himself to the duties of
an agent, or where he has fraudulently mixed himself up
with the breach of trust, or has accepted a delegation of the
whole trust, is liable to account to the beneficiary. Lewin
on Trusts, (7th Eng. ed.) 436, 175, 550 ; Perry on Trusts,
sees. 246, 812, 907; Bodenham v. Hoskins, 2 DeG., M. & G.
902 ; Morgan v. Stephens, 3 Giff. 226 ; Hardy v. Caley, 33
Beav. 365 ; Morgan v. Morgan, 1 Atk. 4S9 ; Davis v. Hark-
ness, 1 Gilm. 173.
A person taking the possession and control of an infant's
estate, is liable to account for the same as if a guardian.
Newburgh v. Brockerstaff, 1 Vern. 296 ; Van Epps v. Van Dou-
ser, 4 Paige, 71 ; 1 McPherson on Infants, 259 ; Schouler on
Domestic Belations, sec. 371 ; Chancy v. Smallwood, 1 Gill,
367'; Perry v. Carmichael, 95 111. 519; Wads worth v. Connell,
104 id. 369; Davis v. Harkness, 1 Gilm. 173.
The guardian's accounts are not defendant's, and can not
shield him from accounting in his fiduciary capacity. Evans
on Agency, *250 ; 1 Story's Eq. Jur. sec. 465 ; Pulling on
Accounts, *35, 41, 42 ; Dennis v. McCagg, 32 111. 429.
Guardian's accounts approved during the minority of the
ward, are only prima facie correct. Schouler on Domestic
Relations, sec. 372 ; Lynch v. Rohan, 39 111. 19 ; In re Steele,
65 id. 622 ; Bond v. Lockivood, 33 id. 216 ; Bennett v. Hanifin,
87 id. 31.
A guardian is liable if he keeps the money in hand and
does not invest it. Mclntyre v. People, 103 111. 147 ; Wads-
worth v. Connell, 104 id. 377.
192 Lehmann et al. v. Eothbarth.
Brief for the Appellants.
A person occupying a homestead should be charged with
the ordinary running expenses, upon the same principle as a
dowress after assignment. Wheeler v. Dawson, 63 111. 54 ;
Midhern v. McDavitt, 16 Gray, 404; Strawn v. Strawn, 50
111. 256.
Eothbarth having used and mismanaged the estate for his
personal benefit, must account for the commissions received
by him. Bond v. Lockwood, 33 111. 216 ; Lynch v. Rohan, 39
id. 19.
A guardian, or one acting in such capacity, who relies upon
a release or settlement, must show that an account was ren-
dered by him to the ward, and that the ward had a reasonable
time to examine the account, and possessed the requisite infor-
mation, skill and knowledge ; and without this the settlement
and release will be regarded as an empty form, and leave the
case as it was before. There must be an adequate consid-
eration, and the party must be free from duress. 2 Leading
Cases in Eq. 1212, 1192, 1246, *596 ; Fish v. Miller, 1 HofL
Ch. 267 ; In re Van Horn, 7 Paige, 46 ; Stanley's Appeal,
8 Barr, 431; Garvin v. Williams, 44 Mo. 465 ; Sullivan v.
Blackwell, 28 Miss. 724; Wills' Appeal, 10 Harr. 325 ; Green
v. White, 1 Johns. Ch. 27; 1 Story's Eq. Jur. sees. 317, 339;
Casey v. Casey, 14 111. 112; Dennis v. McCagg, 32 id. 429;
Pennington v. UHommedieu, 7 N. J. Eq. 443; Foshay v. Fer-
guson, 5 Hill, 158; Hytton v. Hytton, 2 Yes. Sr. 548.
Mrs. Lehmann, under her cross-bill, is entitled to an ac-
count by Eothbarth, as her agent, unless barred by her settle-
ment with him, and her release of March 13, 1880. Clapp
v. Emery, 98 111. 523 ; Patten v. Patten, 75 id. 466 ; Make-
peace v. Rogers, 34 L. J. Ch. 306 ; 1 Story's Eq. Jur. sees.
462, 465 ; Evans on Agency, sec. 250.
The onus is thrown upon the agent of rendering an account
to his principal, with the vouchers. Without such fair deal-
ing and full disclosure and statement of accounts, settlements
between principal and agent will be set aside. 1 Story's Eq.
Lehmann et al. v. Eothbarth. 193
Brief for the Appellee.
Jur. sees. 218, 315, 465; Evans on Agency, *250; Kerr on
Fraud, 125, 151; Pulling on Accounts; *41, 42; Dennis v.
McCagg, 32 111. 429; Jenkins v. Gould, 3 Eussell's Ch. 3S6 ;
Makepeace v. Rogers, 34 L. J. Ch. 306.
The burden of proving the transactions fair, is upon the
agent and trustee. Gibson v. Joyes, 6 Ves. 266 ; Billage v.
Louther, 9 Hare, 534; Jennings v. McCormick, 17 111. 150;
Jenkins v. Gould, 3 Eussell's Ch. 385.
Mr. W. C. Goudy, for the appellee :
The court erred in admitting the bank account in evidence.
The entries in the bank books are nothing more than the dec-
larations of those making them, and mere hearsay. Barnes v.
Simmons, 27 111. 512 ; Jermain v. Worth, 5 Denio, 342 ; Phila-
delphia Bank v. Officer, 12 S. & E. 49 ; Bank v. Call, 5 Fla.
409 ; Mudgett v. Howell, 33 Cal. 25.
The orders of the probate court in approving the reports
are res judicata. Freeman on Judgments, sec. 319 ; Schouler
on Executors and Admrs. sees. 528, 526 ; Gates v. Treat, 17
Conn. 388; Caldwell v. Lockridge, 9 Mo. 362 ; Jones v. Brinker,
20 id. 87; Parker v. Bussell, 11 Cush. 107; Ordinary v. Ker-
shaw, 14 N. J. Eq. 527 ; Debrell v. Pouton, 27 Texas, 623 ;
Dooley v. Dooley, 14 Ark. 122; Dickson v. Hitt, 98 111. 300.
In some States the rule is applied to partial accounts.
Rhoa-ds' Appeal, 39 Pa. St. 186 ; Cummings v. Cummings, 128
Mass. 532; Wiggin v. Swett, 6 Mete. 194.
It is ordinarily a good bar to a suit for an account, that the
parties have had a settlement. Story's Eq. Jur. sec. 523 ;
Dawson v. Dawson, 1 Atk. 1 ; Chambers v. Goldwin, 9 Ves.
265 ; Taylor v. Haylin, 1 Cox, 435 ; Belden v. Phillips, 2 Edw.
Ch. 1 ; Chappedelaine v. Dechenaux, 4 Cranch, 306.
Eothbarth is entitled to the benefit of the accounts rendered
in the name of the guardian. An agent employed by a trus-
tee is accountable only to him, and not to the cestui que trust.
Story on Agency, sec. 217a; Megler v. Fitzpatrick, 6 Madd.
13—111 III.
194 Lehmann et al. v. Kothbarth.
Opinion of the Court.
360; Attorney General v. Earl of Chesterfield, 18 Beav. 596;
Lock-wood v. Abdy, 14 Sim. 437.
No decree can be founded upon new and distinct matters
introduced by a cross-bill, not embraced in the original suit.
May v. Armstrong, 3 J. J. Marsh. 262 ; Daniel v. Morrison,
6 Dana, 186 ; Gallatin v. Erwin, 8 Cow. 361 ; Josey v. Rogers,
13 Ga. 478 ; Rowan v. Rifle Co. 33 Conn. 1.
Mr. Justice Mulkey delivered the opinion of the Court :
Upon filing the record in this court, appellee entered a
motion to dismiss the appeal for an alleged want of jurisdic-
tion, which was reserved for the hearing.
The question presented by the motion is, whether, under
the pleadings and proofs, a freehold is involved, it being con-
ceded there is no other ground upon which the jurisdiction
of this court can rest. This question must be answered in
the affirmative. One of the main objects of the bill is to
recover an equitable freehold in land, — or, in other words, to
establish a resulting trust in a freehold estate, — which neces-
sarily involves a freehold. The only answer made to this
position is, that there is no evidence in the record tending to
establish it, and that it is not within the power of a party to
confer jurisdiction upon this court by a mere allegation in
the pleadings. The latter branch of the proposition we con-
cede, but do not concur in the view there is no evidence in
the record tending to establish the claim of the bill in this
respect. Evidence was offered, and considered by the court,
on both sides of this question, and so far as we can see, the
claim of appellants is made in good faith, upon evidence
tending to establish it, and this was sufficient to confer juris-
diction upon this court.
Appellants are met at the threshold of the case with the
claim that Kothbarth's only connection with the estate of
which an account is sought, was that of a mere agent of his
wife, to whom he has already fully accounted. We fully
Lehmann et at. v. Eothbarth. 195
Opinion of the Court.
recognize the general principle here invoked, and the only
question is whether it is applicable to a case like the present.
The principle in question, like most general rules, has its
limitations, which are as well recognized as the rule itself.
The general doctrine, with its limitations, is well stated by
Perry in his work on Trusts. The author says : "If an
agent is employed by a trustee, and thus comes into posses-
sion of the property, he will be accountable to his employer,
and will not be responsible as a constructive trustee. But if
an agent should act fraudulently or collusively, he might be
made a trustee by construction, and as such accountable to
the cestui que trust." (Sec. 246.) "If an agent secures any
benefit from a breach of the trust, he will be responsible for
the property to the party entitled to the beneficial interest."
(Sec. 813.) "If they mix themselves up with a breach of
trust, and by an abuse cf their powers as simple agents ob-
tain possession of the trust property, the cestui que trust may
proceed against them as trustees de son tort, or constructive
trustees." (Sec. 907.) See, also, to the same effect, Lewin
on Trusts, (7th Eng. eel.) 175, 436, 550. The rule, with its
limitations, as stated by these authors, is fully recognized by
this court in Davis v. Harkness, 1 Gilm. 173.
The question then recurs, do the proofs bring appellee
within any of the exceptions to the general rule that an agent
of the trustee can not be required to account to the cestui que
trust for his management of the trust estate. After a careful
consideration of the record we feel constrained to hold that
they do. We can not stop to discuss the evidence bearing
upon this or other controverted questions of fact involved in
the case, nor can we even advert in a general way to all the
material parts of it, without extending the opinion in the case
beyond all reasonable limits. We must therefore content our-
selves with a statement of the general results reached upon
matters of mere evidence, with an occasional reference to such
parts of the proofs as we think have special significance.
196 Lehmann et al. v. Bothbarth.
Opinion of the Court.
Assuming appellee, under the circumstances shown, may
be required to account to the parties in interest for his man-
agement of the estate, as we hold he may, it is then claimed
the reports and accounts heretofore filed by him in the name
of his wife, and approved by the probate .court, must be
treated as his reports, and that he is entitled to the same
protection under them as if they had been made out in his
name, and he had been the legally appointed guardian of the
children instead of Mrs. Lehmann. In making this state-
ment of appellee's position, of course we do not pretend to
give his or his counsel's language, but simply the effect of
the claim, as we understand it. There are several serious
objections to this view. We think the weight of evidence
shows that from the date of the first guardian accounts in
1876, and even during the preparation of those accounts,
Mrs. Lehmann had but little to do with the control or man-
agement of the estate, and that her knowledge of it was much
less. It would appear, from some cause or other, — whether
from undue influence, compulsion, or otherwise, — she had at
that time, in effect, abdicated her office and trust as guardian,
in favor of her husband, over whom she does not seem to
have had the slightest supervisory control. It is true, there
is considerable evidence in the record that negatives this view,
some of which is open to apparently just criticism, and that
which is not, we think is overborne by the testimony of more
reliable witnesses, and facts about which there is no contro-
versy. Mrs. Lehmann says in her testimony : "Mr. Both-
barth kept charge of my property, and the estate, money and
mortgages, from 1874 to December 10, 1879. * * * I did
not have the money of the minors during that time. I did
not have charge of it at all. I did not have charge of it be-
cause Mr. Eothbarth took charge and refused to let me have
charge of it. I told him to let me have charge of it, and he
said he would never let me have it unless I would force him
in court to do so, and if I did, he would burn up everything
Lehmann et al. v. Rothbarth. 197
Opinion of the Court.
before he would render it to me. We had repeated conversa-
tions like this. I asked him repeatedly to let me have the
papers, and let me take care of them, but he refused, and in
1877 I asked him again, but he would not do it, and after I
returned from Europe I asked him again, and he said he
would never do it unless I enforced it. That was always the
answer he gave me, — that he would burn up everything be-
fore he would do it, and make my children beggars. These
conversations were not carried on in a quiet manner, but in
a very rude manner. * * * I signed the accounts now
shown me, being the guardian's accounts filed May 6, 1876.
Mr. Rothbarth told me to sign them — that they were correct.
When I took them in my hands to look them over, he said
they were all right, — that they were correct, — and I did not
know enough to examine them, to see whether they were cor-
rect. He kept the books and kept the accounts, and as he
made them I signed them. "
As already appears from the preceding statement, in 1876
Rothbarth took the securities belonging to the estate, out of
the box in the vault of the Fidelity bank, in which they had
theretofore been, and to which his wife had access, and placed
them in another box under his exclusive control, and abso-
lutely refused her all access to them. At the time of his
settlement with Ida and Alfred A., the latter testifies : "Mr.
Rothbarth took us down to his private room, and said he
wished to settle our estate ; we were to settle with him, and at
that time mother stepped into the room to be present and see
how things were to be presented. He took her by the arm
and led her out of the room, and said, 'You don't know any-
thing about this estate. I have been handling it, and I have
got the books, and I am going to settle with the children.' "
This, to us, looks much like an independent assumption of
the duties of guardian, and a repudiation of her rights, as
well as his agency. That Mrs. Lehmann knew but little, if
anything, about the correctness of her guardian accounts,
198 Lehmann et al. v. Rothbarth.
Opinion of the Court.
and that they are really the work of Rothbarth himself, and
Koch, his confidential friend and partner in business, is also
fully borne out by the testimony of Mr. Rosenthal. He says :
"When I turned over the securities to Mr. and Mrs. Roth-
barth on their return, (from Europe,) I dealt directly with
Mr. Rothbarth. * * * I remember the guardian's account
rendered in 1876, — that data and everything were furnished
by Mr. Rothbarth, the amount of receipts and expenditures.
I do not suppose Mrs. Rothbarth did anything in regard to
it. A great deal of the work in preparing the accounts was
done by Mr. Koch." To this he adds, on cross-examination:
"I have no doubt that Mrs. Rothbarth was sometimes at my
office. I have no recollection of requiring her presence to do
business, except for signatures to the account. " With refer-
ence to the items included in the account, he says he put
in things that were doubtful and things that were improper
because directed to do so, that the court might pass upon
them. We do not give his exact words, but this is the sub-
stance of his statement.
It is clear from all this, the accounts in question were never
verified by the oath of any one who understood them, and an
analysis of the accounts themselves, in the light of the undis-
puted facts, shows they are erroneous in many particulars,
and to such an extent that it would be difficult, if at all
practicable, to separate the proper from the irnproj)er items,
without a restatement of the whole account. The guardian
herself, on subsequent investigation, admits that these ac-
counts are erroneous and unjust as passed by the probate
court, and desires they shall be set aside and restated ; and
that they were thus passed and approved by the court mainly
through the instrumentality of Rothbarth, is clear beyond all
question, and it is but charitable to add that in obtaining
their approval under such circumstances, was an imposition
upon the court. These accounts not having been verified by
his oath, (the only person who fully understood their real
Lehmann et at. v. Rothbarth. 199
Opinion of the Court.
condition,) we are aware of no principle upon which he can
now shield himself behind them, and to permit him to do so,
under all the circumstances of this case, would be a travesty
on legal justice.
As a single instance, out of many we can not stop to
enumerate, of the glaring injustice of these accounts, may be
mentioned the fact the children are charged in them with
large sums on account of taxes, insurance, and the ordinary
repairs of the homestead premises, that brought them no
income, and were used and occupied by Mrs. Rothbarth and
her husband as a residence. This is particularly true as to
Rothbarth, for a large portion of the time Mrs. Rothbarth was
in Europe with her children, who were lodged, boarded and
educated there at their own expense for most of the time, and
even for the small portion of time they lived at the homestead
they were charged up in these accounts with their support.
In any event, the children should not be charged with more
than an equitable portion of these expenses. The general
rule unquestionably is, the tenant for life must defray ex-
penses of this character. Other matters equally unfair and
improper might be pointed out, but we can not stop to do so.
As the settlement between Rothbarth and Ida and Alfred A.,
heretofore mentioned, was based chiefly on these erroneous
accounts, they should not be concluded by it ; and it may be
added, the circumstances already stated, under which it was
made, afford additional reasons why they should not be so
bound. A settlement pressed upon wards about the time of
their becoming of age, by one standing in loco parentis, and
claiming to represent their mother and lawful guardian, from
which the latter is forcibly excluded, should not be sustained,
except in so far as it is just and fair to them. In restating
the account, they must, of course, be charged with all pay-
ments made to them, including the real estate taken by them
in payment of their interests, respectively, with this qualifi-
cation : that Rothbarth must make compensation for any loss
200 Lehmann et al. v. Eothbarth.
Opinion of the Court.
they may have sustained by reason of taking property instead
of cash, other than loss arising by subsequent depreciation of
the property. If it was put to them at any material advance
on its then cash value in the condition the property then was,
he should make compensation, otherwise not. The right to
compensation, however, should be made out, if such a claim
is interposed, by clear and conclusive testimony, so as to
leave no well founded doubt of its justness.
The evidence shows, at least the weight of it does, that
the individual estate of Mrs. Lehmann and that of her chil-
dren was treated as a common fund, and that from and after
the date of the first guardian's report, Eothbarth treated it
precisely as if it belonged to him, or he alone had control
over it, and a large portion of the cash was carried to his own
bank account, where it was used as his own private fund.
This is abundantly shown by the fact the accounts filed in
the probate court show large balances on hand, when by
reference to his bank account, the correctness of which he
does not question, it is demonstrated he had little or nothing
on hand, and that his account immediately before and after
these settlements was even overdrawn. Under these circum-
stances he is clearly liable for interest. (Perry on Trusts,
sec. 468.) One in the possession of trust funds can not thus
use them, and then relieve himself of responsibility by falsely
reporting he has them on hand and is unable to invest them.
To the objection the evidence showing the state of Koth-
barth's bank account on particular days was improperly ad-
mitted, we think there is no merit in it. When the question
how much ready money a party who is shown to keep a bank
account has on hand at a particular time, becomes important
in a judicial inquiry, the state of his bank account at the
time in question is certainly competent evidence upon such
an issue ; and as to the manner of proving it, we know of no
other way more satisfactory than that which was adopted in
this case, — namely, by introducing the account itself. It is
Lehmann et al. v. Eothbarth. 201
Opinion of the Court.
true that in this particular case an examined copy of the
account taken from the bank books was used, but it was
stipulated the copy was to be treated and given the same
effect as the books themselves. That one's bank account is
competent evidence for the purpose Eothbarth's was used in
this case, is expressly held in Furness v. Cope, 5 Bing. 114.
With respect to the real estate in controversy there is little
to be said. While we think the circumstances tend strongly
to show that the funds of Mrs. Eothbarth or of the children,
or of perhaps both, were used in paying for the property, we
are nevertheless of opinion the evidence, upon the whole,
leaves the matter in too much uncertainty to warrant relief
in this mode. By requiring appellee to fully account for the
estate of Mrs. Lehmann as well as that of her children, which
he must do, the ends of justice will be sufficiently and more
certainly subserved than to establish a resulting trust with
respect to this property.
As just indicated, we think the court erred in denying relief
under Mrs. Lehmann's cross-bill. We do not think Eothbarth
ought to be permitted to shield himself behind the settlement
of December, 1879. The circumstances under which it was
effected, as well as its subsequent ratification, appeal strongly
in her behalf. It is apparent she did not, at the time, under-
stand what , her rights were, for, as already shown, she had
been practically excluded by him for years from all partici-
pation in the management and control of the estate, including
her own as well as that of her children, and hence it was
impossible for her to have any reliable information as to the
condition of her affairs or her rights in the premises. More-
over, by his harsh and cruel treatment, his imperious bearing
and conduct, resulting, as she claims, in serious sickness and
despondency, she was evidently, at the time, in no condition
to enter into a business engagement of such magnitude. In
short, under all the circumstances, we regard the so-called
settlement as a fraud upon her rights, and it should not,
202 Abend v. T. H. & I. K. E. Co.
Syllabus.
therefore, be permitted to stand. He has never accounted to
her for the moneys she put into his hands, though often urged
to do so. This he must do. Honesty and fair dealing require
it. If he has kept his accounts, as her trustee, by preserving
proper vouchers for all disbursements, and charging himself
with all moneys that went into his hands, as the law requires
he should have done, it will impose no hardship on him ; and
if he has failed to do this, it is but right that he should suffer
any inconvenience his neglect in this respect brings upon him.
The decree of the court below is reversed, and the cause
remanded for further proceedings in conformity with the
views here expressed.
Decree reversed.
Mr. Justice Craig, dissenting.
Mr. Justice Scott : I am of opinion no freehold is involved
in this case, and that the motion to dismiss should be allowed.
For that reason I do not now wish to express any opinion as
to the merits of the controversy.
Edward Abend
v.
Terre Haute and Indianapolis Eailroad Company.
Filed at Mt. Vernon September 27, 1884.
1. Contributory negligence — what so regarded — and its effect on the
right of recovery. Where an employe of a. railroad company was sent on a
wrecking train to assist in removing the debris of a wrecked train from the
track, and instead of taking his seat in the car, in violation of a published
rule of long standing entered the locomotive and took a seat with the fireman,
just in front of the latter, where he remained until a collision took place with
a freight train, and he was killed, it was held, that he was guilty of such
negligence in taking an extra -hazardous place, as to bar any right of action
by his personal representative, notwithstanding the negligence of the servant
in charge of the train.
Abend v. T. H. & I. E. E. Co. 203
Brief for the Plaintiff in Error.
2. It is not true, as a general proposition, that in actions for personal
injuries caused by the defendant's negligence, the contributory negligence of
the injured party will constitute no defence except when the latter's negli-
gence is an element or factor in producing the force causing the injury
complained of. It is sufficient if his negligence materially contributes to the
injury, whether it contributes to the force causing the injury or not.
3. A person who voluntarily and unnecessarily places himself in a well
known place of danger to life or body, but for which position he could not
have been injured, and he is injured or killed in consequence of such ex-
posure, even through gross negligence of the defendant, if the act of the
latter is not wanton or willful, is guilty of such contributory negligence as to
preclude any jecovery by him or his personal representative.
4. If a plaintiff, by the exercise of ordinary care and prudence, might have
avoided the consequences of the defendant's negligence, and failed to do so,
he can not recover of the latter for mere negligence. This rule has no appli-
cation when the element of fraud or intentional injury enters into the case.
5. Fellow- servants — whether that relation exists. A person in the
employ of a railway corporation as a head blacksmith, was, with a number of
other employes, directed to proceed on a wrecking train of the company to a
place where a train of cars had been wrecked, for the purpose of assisting in
removing the rubbish and obstructions. The train carrying them was under
the charge of the engineer, who acted also as conductor, and by his neglect
to obey instructions the train collided with another, resulting in the death of
the blacksmith: Held, that the blacksmith, and all the other employes on the
train, including the engineer and fireman, were fellow- servants of a common
master, engaged in the same line of employment, within the rule excluding
a right of recovery by one servant for the negligence of a fellow- servant.
6. Practice— taking case from jury by instruction. Where the plain-
tiff fails entirely to make out a part of his case essential to a recovery, there
is no error in the court instructing the jury to find for the defendant.
Writ of Error to the Appellate Court for the Fourth Dis-
trict; — heard in that court on writ of error to the Circuit
Court of St. Clair county ; the Hon. George W. Wall, Judge,
presiding.
Mr. James M. Dill, Mr. W. H. Bennett, and Mr. J. M.
Freels, for the plaintiff in error :
The ruling of the circuit court in withdrawing the proofs
from the jury, and instructing them to find for the defendant,
was an unwarrantable invasion of the province of the jury.
The question of negligence is one of fact for the jury, and not
204 Abend v. T. H. & I. E. B. Co.
Brief for the Plaintiff in Error.
of law for the court. (Hubner v. Feige, 90 111. 212.) As to
the proper practice, see Amos v. Sinnott, 4 Scam. 447 ; Deshler
v. Beers, 32 111. 369 ; People v. Brown, 3 Gilm. 87 ; Crowley v.
Crowley, 80 111. 469.
If the evidence even tended to show a right of recovery, the
court had no power to take the case from the jury. Guerdon
v. Corbell, 87 111. 272 ; Pennsylvania Co. v. Conlan, 101 id. 95.
Whether or not Beasley was guilty of negligence which con-
tributed to the injury, was a question of fact to be found by
the jury, under proper instructions from the court. Railroad
Co. v. Bonifield, 104 111. 224; Pennsylvania Co. v. Conlan,
101 id. 94; Railway Co. v. Elliott, 98 id. 481; Lasure v.
Granville Man/. Co. 18 S. C. 275.
The definition of negligence is a question of law for the
court, but it is always a question of fact, to be determined,
from the evidence, by the jury, whether a given case falls
within that definition. Railroad Co. v. Morgenstern, 106 111.
220.
The negligence of the plaintiff which defeats his recovery
must be the proximate cause of the injury. Fowler v. Rail-
road Co. 8 Am. & Eng. Ey. Cases, 482 ; Frink v. Potter, 17
111. 411.
Plaintiff's contributory negligence must have immediately
or proximately contributed to the result. Weeks v. Railway
Co. 8 Am. & Eng. Ey. Cases, 314.
The question of comparative negligence is also a question
of fact for the jury. Railroad Co. v. Bonifield, 104 111. 224.
Taking these questions of fact from the jury can not be
sustained except by overruling the cases of Frink v. Potter,
17 111. 406, Railroad Co. v. Morgenstern, 106 id. 220, Rail-
road Co, v. Bonifield, 104 id. 224, Pennsylvania Co. v. Conlan,
101 id. 94, and Railway Co. v. Elliott, 98 id. 481.
Beasley was killed through the negligence of the persons
having charge of the train. He had no control over their
actions, and as to them was not a fellow-servant, engaged in
Abend v. T. H. & I. E. E. Co. 205
Brief for the Defendant in Error.
a common work. Bartonshill Coal Co. v. Reid, 3 Macq. 266 ;
Gray v. Bressy, 15 Court of Sess. 135 ; Railroad Co. v. Keefe,
47 111. 110; Ryan v. Railroad Co. 60 id. 173; Railroad Co.
v. Powers, 74 id. 345; Railroad Co. v. Moranda, 93 id. 324;
Railroad Co. v. Collins, 2 Duv.- 114; Gillenwell v. Railroad
Co. 5 Ind. 340; Cooper v. Mullens, 30 Ga. 150.
The rule to be deduced from all these cases is, that when
the injured servant has no control over the offending servant,
then they are not fellow-servants. Dowling v. Allen & Co.
74 Mo. 13; Railroad Co. v. Fort, 17 Wall. 557; Wood on
Master and Servant, sees. 390, 436, 439 ; Cooley on Torts,
555 ; 2 Thompson on Negligence, 976.
Who are fellow-servants in a given case, like the question
of negligence, is a question of fact for the jury, and not of
law for the court. Whether Beasley and the engineer were
fellow-servants depended upon a variety of facts, which had
to be proven before the jury, and from the facts thus proven
it was for the jury then to say whether the two servants, in
the discharge of their duties, were fellows ; and it was error
in the court to deprive the jury of this right. Railroad Co.
v. Morgenstern, 106 111. 220; Railway Co. v. Moranda, 108
id. 581.
Mr. John B. Bowman, for the defendant in error :
Beasley was not a passenger, but a servant being carried
to the place he was needed. Even if he had been in the car
provided for him, he would be no more a passenger than were
Keefe, in 47 111. 108, or Britz, in 72 id. 256, or Cox, in 21 id.
23, or Durkin, in 76 id. 395. He was simply a servant, with
privilege to ride free. Ryan v. Railroad Co. 23 Pa. St. 384 ;
Gillehannon v. Railroad Co. 10 Cush. 228 ; Seaver v. Railroad
Co. 14 Gray, 466.
That Beasley was a fellow-servant with the conductor and
fireman, see Keefe' s case, 47 111. 110; Gartland's case, 67 id.
498 ; Railroad Co. v. Moranda, 93 id. 320.
206 Abend v. T. H. & I. K. K. Co.
Opinion of the Court.
The court may exclude all the evidence when there is no
proof tending to prove a material fact. Frazer v. Howe, 106
111. 573 ; Crowley v. Crowley, 80 id. 469 ; Smith v. Gillett, 50
id. 290 ; Poleman v. Johnson, 84 id. 269.
The material issues presented by the allegations of the
declaration are : First, was Beasley a passenger ? Second,
was he in the exercise of due care and caution ? Third, was
he a fellow- servant with defendant's servant through whose,
fault the collision occurred which resulted in his death ?
Mr. Justice Mulkey delivered the opinion of the Court :
This action was brought by Edward Abend, the plaintiff in
error, as administrator of Thomas Beasley, against the Terre
Haute and Indianapolis Bailroad Company, the defendant in
error, to recover damages for personal injuries received by
the plaintiff's intestate in a railroad collision, resulting in the
latter's death, alleged to have been occasioned by the negli-
gence of the company. The cause was tried in the St. Clair
circuit court, where the action was brought, resulting in a
verdict and judgment for the defendant. The judgment hav-
ing been affirmed by the Appellate Court for the Fourth Dis-
trict, the plaintiff in error brings the record here for review.
On the trial in the circuit court, after the evidence on the
part of the plaintiff was in, the defendant declined to offer
any testimony, and the court, at its instance, instructed the
jury to find the issues for the defendant, which it did, and
the ruling of the court in thus withdrawing the case from the
jury presents the ultimate question for determination.
The circumstances under which Beasley was killed, and
which gave rise to the present litigation, are as follows : On
the 25th of June, 1880, one of the defendant's trains was
wrecked on its road, near Confidence Hill, in Madison county,
this State. On the following day the deceased, being an em-
ploye of the company, together with a number of others, was
Abend v. T. H. & I. E. E. Co. 207
Opinion of the Court.
ordered by the proper officer of the company to go out from
East St. Louis, on a wrecking train of the defendant, to the
place of collision, for the purpose of assisting in removing
the wreck, which he proceeded to do. The train was under
the control of one Busse, who acted in the capacity both of
conductor and engineer. Beasley, instead of taking a seat in
the wrecking car, as he should have done, in violation of a
published rule of the company of many years' standing, and
of which, from the circumstances, he must have had notice,
got on the locomotive and took a seat on the fireman's side,
immediately in front of Cope, the fireman, the train moving
off as he did so, in which position he remained until a short
time afterwards, when the locomotive upon which he was
riding collided with the engine of a freight train coming in
the opposite direction, causing his immediate death. The
train upon which the deceased was riding was what is known,
particularly among railroad men, as a "wild train," — that is,
a train not running by schedule, but under special instruc-
tions. By the orders delivered to Busse he was expressly
directed to keep out of the way of the very train with which
his own train collided. This he neglected to do, — hence the
collision, and the serious consequences resulting therefrom.
The declaration charges, in substance, that Beasley, by
order of the company, went aboard the train for the purpose
indicated, and that while it was proceeding to the wreck,
under the control and management of the servants of the
defendant, it came in collision with a freight train belonging
to and under the control of the defendant, whereby the said
Beasley was instantly killed; that at the time he was so
killed he was exercising due care and caution, and that such
killing was without any fault or misconduct on his part, and
that he was not, at the time in question, a fellow- servant
with the servants of the defendant who were operating said
train, or either of them ; that said Beasley then was, and
prior thereto had been, in the employ of the defendant as its
208 Abend v. T. H. & I. R. R. Co.
Opinion of the Court.
head blacksmith, and when so killed he was proceeding to
said wreck, by defendant's order, in his capacity as such
blacksmith, which is a distinct and different line of employ-
ment from that of the other servants of the defendant, etc.
These allegations were all traversed by the defendant's plea,
and thereby put directly in issue.
The proofs clearly establish most of the issuable facts
essential to a recovery. But do they show, or tend to show,
the deceased was exercising due care at the time of the col-
lision, or that the deceased was not at such time a fellow-
servant with the servants of the company through whose
negligence the collision happened ? We are of opinion they
do not. It follows, therefore, the trial court ruled prdperly
in withdrawing the case from the jury. What evidence is
there in this case tending to show that the deceased was
using due care at the time of the accident ? None, that we
can see. Instead of taking a seat in the wrecking car, (the
safest and most appropriate place, especially in case of col-
lision or other accident,) as he should have done, and, in-
deed, as he was requested to do, he deliberately, in violation
of an express rule of the company, took a seat upon the
locomotive, where he was not only exposed to the ordinary
dangers incident to that place, but his position even there
was rendered extra hazardous by the fireman sitting imme-
diately in his rear, in the small space provided for the fire-
man only. Situated as the parties were, in case of sudden
danger it would, to say the least of it, have been very diffi-
cult for him to have made his escape by jumping from the
engine, and so it turned out in this instance. Cope, being in
the rear, did jump from the locomotive before the collision —
Beasley did not. The consequence was, Cope saved his life,
while Beasley lost his. Of the entire force, Beasley was the
only one killed.
We are of opinion the proofs, so far from showing the de-
ceased was exercising due care when the accident occurred,
Abend v. T. H. & I. R. R. Co. 209
Opinion of the Court.
established beyond controversy he was guilty of such negli-
gence as to absolutely forbid a recovery. Indeed, it does not
seem to be seriously contended the deceased was free from
negligence, but the contention appears to be that Beasley's
death was the immediate result of the collision, and that the
negligence of the deceased was not an element or factor in
producing the collision, hence it seems to be concluded that
however gross his negligence, it can not affect his right of
recovery. This view, plausible as it may appear, is clearly
unsound. It can not be maintained as a general proposition,
that in actions for personal injuries caused by the defendant's
negligence, the contributory negligence of the injured party
will constitute no defence except when the latter's negligence
is an element or factor in producing the force causing the
injury complained of. It is sufficient if the plaintiff's negli-
gence materially contributes to the injury, whether it con-
tributes to the force causing the injury, or not. Whatever
dicta, or even decisions, may be found to the contrary, the
cases fully establish the rule as here stated. Galena and
Chicago Union R. R. Co. v. Fay, 16 111. 55"S ; Illinois Central
R. R. Co. v. Buckner, 28 id. 299 ; Chicago and Alton R. R.
Co. v. Becker, 76 id. 25.
A simple illustration will demonstrate the fallacy of the
principle contended for. A party deliberately lies down upon
a railroad track where trains of a railroad company are con-
tinually passing, and falls asleep. Presently a train comes
along at a forbidden rate of speed, and the engineer neglects
to ring the bell as required by statute, and the party on the
track'is injured. In the case supposed it is clear there could
be no recovery, and yet the negligence of the party injured
did not contribute to the force causing the injury, nor did it
have any connection with the negligence of the company in
operating its train. It consisted simply, as in the present
case, in the injured party placing himself in a dangerous
position, but for which the accident would not have happened.
14—111 III.
210 Abend v. T. H. & I. E. B. Co.
Opinion of the Court.
The principle deducible from the cases generally, is, that if
the plaintiff, by the exercise of ordinary care and prudence,
could have avoided the consequences of the defendant's neg-
ligence, and fails to do so, he can not recover. Indeed, it is
a fundamental principle the plaintiff can not recover in any
case for an injury occasioned by negligence merely, which
would have been avoided by the exercise of ordinary care and
prudence on the part of the plaintiff himself. Of course, the
rule here announced has no application where the element of
fraud or intentional injury enters into the case, for however
negligent the plaintiff may be, the defendant has no right to
practice a fraud upon or willfully injure him.
But conceding, for the purposes of the argument, the court
should not have withdrawn the question of due care of the
plaintiff from the jury, we have no hesitancy in saying the
case made by the plaintiff was wholly insufficient to warrant
a recovery upon the other question, and the case was there-
fore properly withdrawn from the jury on that ground. The
Cox case, 21 111. 23, the Keefe case, 47 id. 108, the Brltz case,
72 id. 256, and the Durkin case, 76 id. 395, all fully sustain
the ruling of the court below upon this question. The evi-
dence, construed in the light of these cases, shows beyond
all controversy that Beasley was a fellow-servant with Busse,
through whose negligence and disobedience of orders the colli-
sion was brought about. The evidence shows that a wrecking
force is always made up, in the hurry of the moment, out
of the employes and servants of the company who happen to
be within convenient reach, without regard to the particular
line of service in which they are employed. The removing
of obstructions from the tracks in case of a collision is, as
shown by the proofs in this case, a distinct branch of service,
to which all the laboring force of the company are liable
to be called, without any reference to their ordinary calling
or duties ; and when a force thus made up goes aboard the
Abend v. T. H. & I. K. K. Co. 211
Opinion of the Court.
wrecking train and starts to the scene of disaster, they are all,
including conductor, engineer, fireman and brakeman, just as
much in a common branch of service while on the way, as
they are after their arrival and the work of clearing the tracks
has actually commenced. It is an error to suppose that a
force of men can not be engaged in a common service unless
all are continuously working at the same time and engaged
in doing precisely the same kind of work. It is sufficient if
all are actually employed by the same master, and that the
work of each, whatever it may be, has for its immediate
object a common end or purpose, sought to be accomplished
by the united efforts of all. The skill of a carpenter, black-
smith, or other mechanic, might be very useful in removing
a wreck, and when thus working together in such a service,
though each one in his own particular way, they are all,
within the meaning of the rule, engaged in a common em-
ployment, notwithstanding in their ordinary employment they
have no connection with each other, and consequently when
so engaged are not fellow-servants. The deceased, though
not actually using a hammer or other tool at the very moment
he was killed, was nevertheless just as clearly in the employ
of the company for the purposes of the business then in hand
as the remainder of the force who actually assisted in remov-
ing the wreck. One who is hired by the day, week or year,
is just as much in his employer's service in going to and
from his work as when actually engaged in the work itself.
The judgment will be affirmed.
Judgment affirmed.
Scott and Dickey, JJ., dissent from this opinion.
212 YoCUM V. LOVELL.
Syllabus. Statement of the case.
Fkancis M. Yocum
v.
Andrew J. Lovell.
Filed at Springfield September 27, 1884.
1. Homestead— as to the mode of its release. The statute does not
require that the name of the husband or wife of the grantor of land shall
appear in the granting clause, or elsewhere in the body of the deed, in order
to a valid release of the estate of homestead.
2. A deed of trust on real estate occupied by a husband and wife as
a homestead, contained a clause expressly relinquishing and releasing the
homestead, and the deed was signed and duly acknowledged by both, though
the wife's name did not appear in the granting clause, or elsewhere in the
body of the deed: Held, that the deed was sufficient to pass the homestead
both of the husband and wife.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — heard in that court on writ of error to the Circuit
Court of Pike county ; the Hon. S. P. Shope, Judge, presiding.
This action was forcible detainer, commenced by Andrew
J. Lovell, against Francis M. Yocum, before a justice of the
peace, to recover possession of a half section of land, described
by its numbers. On the trial before the justice of the peace
defendant was found guilty, and judgment rendered against
him. On his appeal the case was tried de novo in the circuit
court, and that court found defendant not guilty as to one
quarter section, and guilty as to the other quarter section,
and rendered judgment for possession, and awarded execu-
tion for costs. That judgment was affirmed in the Appellate
Court for the Third District, and the judges of that court
having certified that in their opinion the case involves ques-
tions of law of such importance as that they should be passed
upon by the Supreme Court, defendant brings the case to
this court on error. v
Yocum v. Lovell. 213
Brief for the Plaintiff in Error.
Mr. J. S. Irwin, for the plaintiff in error :
It is not sufficient to release the wife's interest in land that
she sign and acknowledge the deed. Her name must be in
the deed as one of the grantors, and she must use words of
conveyance or release. McFarland v. Febiger, 7 Ohio, 194;
Leavitt v. Lamphrey, 13 Pick. 383 ; Catlin v. Ware, 9 Mass.
218; Stevens v. Owens, 25 Maine, 94; Lufkin v. Curtis, 13
Mass. 223 ; Powell v. Monson, 3 Mason, 349 ; Hall v. Savage,
4 id. 273; Westfall v. Lee, 7 Iowa, 12; Lothrof v. Foster, 51
Maine, 367 ; 3 Washburn on Eeal Prop. 257 ; Lithgoiv v. Kave-
naugh, 9 Mass. 173 ; Purcell v. Goshorn, 17 Ohio, 105 ; Dodge
v. Nichols, 5 Allen, 548 ; Bartlett v. Bartlett, 4 id. 440 ; Mel-
vin v. Proprietors, 16 Pick. 137; Bruce v. Wood, 1 Mete. 542;
Cox v. Wells, 7 Blackf. 410 ; Cincinnati v. Newhall, 7 Ohio
St. 37 ; Raymond v. Holden, 2 Cush. 264; Agricultural Bank v.
/^ce, 4 How. 225 ; Peabody v. Hewitt, 52 Maine, 50 ; Green-
ough v. Taylor, 11 Gray, 332; Hodge v. Hollister, 2 Tenn.
606; Sharp v. Bailey, 14 Iowa, 387; £Vw/yie v. Parker, 10
Maine, 178 ; Jewett v. Davis, 10 Allen, 70 ; Warner v. Ptfc&,
10 K. I. 431 ; i&m v. P€<?Zer, 4 Jones, (N. C.) 226 ; GV«?/
v. Matthis, 7 id. 502 ; Hammond v. Thompson, 56 Ala. 591 ;
Lawrence v. Heister, 3 H. & J. 371 ; Baxter v. Bodkin, 25
Ind. 172; Hedges v. IFard, 15 B. Mon. 106; ^yr«s v. ffawfo?,
1 Bradw. 600.
There must be a formal release of the homestead, — a re-
lease of fee or dower is not sufficient. Kitchell v. Burgwin,
21 111. 45 ; Vanzant v. Vanzant, 23 id. 536 ; Boyd v. Cudder-
back, 31 id. 113; Smith v. Miller, id. 157; Warner v. Crosby,
89 id. 320 ; Ees£ v. Gholson, id. 465.
The homestead right may be set up by the husband, in
ejectment or forcible detainer. Warner v. Crosby, 89 111. 320 ;
Best v. Gholson, id. 465 ; Panton v. Manley, 4 Bradw. 210 ;
BonnellY. Smith, 53 111. 375; 35 id. 106; Johnson v. A die -
man, id. 265 ; Trustees v. Hovey, 94 id. 394,
214 Yocum v. Lovell.
Brief for the Defendant in Error.
The release or waiver must be joined in by the wife and
husband, both in the deed and acknowledgment. Eev. Stat.
1874, chap. 30, sees. 11, 27, and chap. 52, sec. 4; Ayres v.
Hawks, 1 Bradw. 600 ; Warner v. Crosby, 89 111. 320 ; Best
v. Gholson, id. 465; Richards v. Green, 73 id. 57; Thompson
on Homestead, sec. 474; Trustees v. Hovey, 94 111. 394; 35
id. 106.
Words of grant or lease are required in every deed. The
intention to convey must appear from the words used. John-
son v. Bantock, 38 111. 111.
Taking a lease by a husband, is not a waiver of homestead
as against the wife. Booker v. Anderson, 35 111. 66 ; Buck
v. Conlogue, 49 id. 391 ; Allen v. Hawley, 66 id. 171 ; Mor-
rison v. Sargeant, 18 Iowa, 9-0; Wood v. Lord, 51 N. H. 448;
Abbott v. Cromartie, 72 N. C. 548 ; Thompson on Homestead,
sec. 470.
Messrs. Matthews, Wike & Higbee, for the defendant in
error :
It is sufficient to release the wife's interest in the land of
her husband, that she sign, seal, acknowledge and deliver the
deed. It is not necessary that her name appear in the body
of the deed as one of the grantors, and this same rule applies
to the interest of the husband in his wife's land. 3 Wash-
burn on Eeal Prop. 266, sec. 31 ; Elliot v. Sleeper, 2 N. H.
525; Coke on Littleton, 6a; Lord Say and Seal's Case, 10
Mod. 46; Miller v. Shaw, 103 111. 277; Woodbury v. Seaver,
38 N. H. 29 ; 4 Bacon's Abridg. 513; Lithgow v. Kavenaugh,
9 Mass. 161; Johnson v. Montgomery, 51 111. 185; Deutzer v.
Walden, 30 Cal. 138 ; Armstrong v. Stovall, 26 Miss. 275.
When persons sign a bond they are bound by it, though
their names do not appear in its body. Smith v. Crooker,
5 Mass. 540; Ahrend v. Odiorne, 125 id. 50; Leath v. Bush,
61 Pa. St. 395; Scheed v. Liebschultz, 57 Ind. 38; Kursely
v. Shenberger, 5 Watts, 193.
Yocum v. Lovell. 215
Opinion of the Court.
A deed will be construed most strongly against the grantor.
3 Washburn on Eeal Prop. 397, and cases cited ; 2 Black-
stone's Com. 380.
Every deed must, if possible, be made operative. Cases
exist in which almost every formal part of a deed has been
dispensed with. Coke on Littleton, 7a; Bridget. Welling-
ton, 1 Mass. 219.
In the transfer of the homestead right the acknowledgment
is made a part of the deed. (Eev. Stat. 1874, chap. 52, sec.
4, and chap. 30, sec. 27.) But even if the two deeds of trust
were neither of them properly executed and acknowledged to
release the right of homestead, yet the plaintiff in error hav-
ing, after the making of the trustee's deeds, accepted a lease
and paid rent under the same, he has thereby given posses-
sion of the premises "pursuant to the conveyance," which,
under the present statute, amounts to a conveyance. Bev.
Stat. 1874, chap. 52, sec. 4; Winslow v. Noble, 101 111. 195;
Barrett v. Wilson, 102 id. 302 ; Eldridge v. Pierce, 90 id. 482.
Whatever right the wife may have in relation to the home-
stead, is subordinate to the right of the husband while he
lives and continues to be the head of the family. Redfern
v. Redfern, 38 111. 509; Clubb v. Wise, 64 id. 157; Buck v.
Conlogue, 49 id. 391 ; Brown v. Coon, 36 id. 243 ; Burson v.
Poiuler, 65 id. 146.
The wife of plaintiff in error is not a party to this suit, and
if she has not properly released her right of homestead she
may have her relief in equity. Booker v. Anderson, 35 111.
67; Abbott v. Cromartie, 72 N. C. 292; 21 Am. Bep. 457.
Mr. Justice Scott delivered the opinion of the Court :
On and prior to the 3d day of November, 1877, defendant,
Yocum, was the owner and was in possession of the land
involved in this litigation. To secure certain indebtedness,
defendant on that day executed and delivered to John A.
216 Yocum v. Lovell.
Opinion of the Court.
Thomas a trust deed on the lands involved, which deed con-
tained the usual power of sale in case default should be made
in the payment of the note secured. Afterwards, on the 22cl
day of November, 1877, in order to secure another sum of
money, defendant made and executed another trust deed on
the same property to A. L. Galloway, which deed also con-
tained the usual power of sale. It appears default was made
in the payment of the note secured by both trust deeds, and
the trustees named therein regularly advertised the property
for sale, according to the provisions of the deeds. At the sale
made of the property, plaintiff became the purchaser, and
received deeds therefor in the usual form from the trustees
making the sales. As to the regularity of the sale no ques-
tion is made, nor as to the validity of defendant's title at the
time of making the trust deeds.
It is proven the indebtedness secured on the property was
not incurred for the purchase money, nor for any improve-
ments in the property ; that defendant is the head of a family,
and resided with them on the property at the time of making
the trust deed, and has since continued to reside with his
family on the quarter section as to which he was found guilty
of withholding from plaintiff. It was also proved the wife of
the grantor had never consented to abandon the premises or
her homestead on the same, or that the grantor might do so,
otherwise than expressed in the deeds of trust, and that the
grantor had not, at any time before or since the bringing of
this suit, provided any other homestead or place of residence
for his wife and family suitable to their condition, or other-
wise. There is &lso evidence that after plaintiff became the
purchaser of the land, defendant became his tenant, but in
the view taken by the court that fact in the case will not
become important, and the evidence on this branch of the
case need not be stated.
On the trial, defendant objected to the reading of both trust
deeds in evidence, on the ground that neither of them was
Yocum v. Lovell. 217
Opinion of the Court.
so executed as in law to bar or cut off the homestead of de-
fendant, or that of his wife residing with him on the prem-
ises. It is conceded the acknowledgment of the trust deed
to Galloway by the husband does not bar his homestead in
the property, and it will not be further noticed. The objec-
tion taken to the trust deed to Thomas, under which the
property was sold to plaintiff, is, that although the signatures
of both the husband and wife appear signed to the deed, yet
it is solely the deed of the husband. The name of the wife
of the grantor nowhere appears in the granting clause, or
elsewhere in the body of the deed. In the body of the deed
all exemption of homestead is expressly relinquished, and the
deed is subscribed by the wife of the grantor, and is acknowl-
edged by her in conformity with the statute. That, it is
thought, is all the statute requires to be done. Section 4,
chapter 52, of the Kevised Statutes of 1874, declares no
release, waiver or conveyance of the estate of homestead so
exempted shall be valid unless the same is in writing, sub-
scribed by the householder and his wife, or her husband, if
he or she have one, and acknowledged in the same manner as
conveyances of real estate are required to be acknowledged.
It will be observed all the statute requires to make the release,
or waiver, or conveyance of the homestead, valid, is that such
relinquishment shall be in writing, and subscribed by the hus-
band or wife of the grantor, if he or she have one, and that
it shall be acknowledged as conveyances are required to be
acknowledged by the 27th section of the Conveyance act.
That was done in this case. The wife of the grantor sub-
scribed the deed relinquishing all exemption of homestead,
and acknowledged the same as the law provides shall be done.
The statute has not required that the name of the husband
or wife of the grantor shall appear in the granting clause, or
elsewhere in the body of the deed. Unless made so by stat-
ute, it is not imperative it shall so appear. It is sufficient
218 Yocum v. Lovell.
Opinion of the Court.
for a valid relinquishment of homestead that it is done in
conformity with the statute.
A question having some analogy to the case now before the
court, was passed upon by this court in Miller v. Shaw, 103
111. 277. The deed was that of a married woman, and it was
insisted it was not sufficient to convey her separate property,
because her husband did not join with her in the granting
clause of the deed, and it was held, under the statute then
in force, that which it required to be done to enable the wife
to convey her separate property is, that she and her husband
shall execute the deed, and after that she shall appear before a
proper officer and acknowledge the same in the mode pointed
out by the statute, and such deed being acknowledged or
proved according to law by the husband, it would be effectual
to pass the title to the separate property of the wife. In the
case now being considered the wife joins with her husband
in the release of the homestead in precisely the same manner
as the husband did with the wife in the case cited, and that
conforms to the provision of the 27th section of the Convey-
ance act of the Eevised Statutes of 1874.
As the trust deed released all exemption from homestead,
and was subscribed by the wife of the grantor, and was
acknowledged in conformity with the statute, it must be
regarded as sufficient to pass the homestead both of the
husband and wife, and as this view is conclusive of the
whole case, the other questions discussed need not be con-
sidered.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
H. & St. J. E. E. Co. v. Martin. 219
Syllabus.
The Hannibal and St. Joseph Eailroad Company
v.
Elizabeth Martin.
Filed at Springfield September 27, 1884.
1. Negligence — in making up a railway train, after receiving a pas-
senger. If a railway company receives a passenger in one of its cars for
passage before making up the train of which such car is to be a part, the law
requires the company to make up its train, couple, manage and control its
cars and engines, in such a careful, skillful and prudent manner as to carry
the passenger with reasonable safety, and it will be liable for an injury to
the passenger resulting from its neglect of this duty, when such passenger is
not wanting in ordinary care.
2. Same — contributory negligence — entering a car before the train is
made up, on invitation of company's employe. The fact that an employe
of a railway company invites one desiring transportation on its cars, to come
aboard the train before it is made up, will not excuse the passenger from the
charge of negligence in rushing into danger plainly seen; but even then, if
no injury follows the act of entering the cars on the invitation, such conduct
on the part of the passenger will not defeat his remedy against the company
for subsequent acts of negligence resulting in his injury, when he is not also
guilty of negligence conducing to the same.
3. Same — contributory negligence — in passing from one car to another,
on suggestion by the conductor. Where a passenger in a railway coach which
was overcrowded, was informed, by the announcement of the conductor in
charge, that another car had been added in front, and the adding of the car
had been felt when it was pushed back, and it was found in proper position
for the reception of passengers, though in fact not securely coupled, so that
just as such passenger was in the act of stepping from the platform of the
rear coach to the forward one, the latter moved forward suddenly, causing
him to fall to the ground, whereby he received a serious injury, it was held,
that the passenger had the right to assume he could pass from the one car to
the other with safety, and in so attempting was not chargeable with want of
ordinary care.
4. Same — of the ownership of the railway and of the cars running
thereon being in different companies — as affecting the question of liability.
A passenger who purchases a ticket for conveyance over a defendant com-
pany's railroad, and is received by the defendant in a car run and operated
by it for the purpose of carrying passengers, and who, while so on such car,
is injured through the carelessness and negligence of the defendant, without
220 H. & St. J. E. R. Co. v. Martin.
Syllabus.
fault or negligence on his part, is entitled to recover damages from the defend-
ant for such injury, whether the defendant owned the car and engine or not.
5. Where the trains of a railway corporation are made up by the employes
of another railroad company, and on the track of the latter, and cars used to
make up the same belong to other companies, if the use of the cars and tracks
and labor in making up such trains is to enable such first named corporation
to exercise its function and perform its duties as a common carrier, such cars,
tracks and servants, so far as the rights of its passengers who may receive an
injury are concerned, must be regarded as the cars, tracks and servants of
the company so using the same.
6. Same — right of recovery on either one of two grounds. In an action
by a passenger against a railroad company to recover for a personal injury,
two counts of the declaration charged a liability for a failure to make up the
train and sufficiently to couple its cars, while the other two charged the neg-
ligence to be the moving the engine and cars attached thereto without suffi-
ciently and securely coupling the cars: Held, that proof of either ground
was sufficient to authorize a recovery, and that an instruction embracing this
principle was not erroneous.
7. Measure of damages — injury from negligence — mental and bodily
suffering. Where suffering in body and mind is the result of injuries caused
by negligence, it is proper to take it into consideration in estimating the
amount of damages.
8. Instructions — in action for personal injury from negligence — as
containing improper element of damage, and assuming right of recovery.
In an action by a passenger against a railway company to recover damages
for a personal injury caused by the negligence of the defendant's servants,
the court instructed the jury that in determining the amount of damages the
plaintiff was entitled to recover, if any, they had the right and should take
into consideration all the facts and circumstances in evidence, the nature
and extent of the plaintiff's physical injuries, if any, testified about by the
witnesses, his suffering in body or mind, if any, resulting from such injuries,
and also such prospective suffering and loss of health, if any, as they might
believe, from all the evidence before them, he has sustained or will sustain.
It was objected that it made mental suffering an element of damage, and prac-
tically assumed the plaintiff was entitled to damages, etc. : Held, that the
objections were not well founded.
9. Same — as to excluding consideration of damages caused by want
of care. While it may be true that a plaintiff receiving a personal injury
may not enhance his claim for damages or recover for any aggravation of his
injuries produced by his own want of care or neglect, it is not necessary that
the plaintiff's instructions should exclude the idea that he may. The defend-
ant may have an instruction based on that hypothesis.
10. Same — as ignoring an important fact. An instruction stating cor-
rectly what acts of negligence on the part of the defendant make out a case
H. & St. J. B. B. Co. v. Martin. 221
Brief for the Appellant.
for a recovery, which in the same connection adds that if the injury received
was without any fault or negligence on the part of the plaintiff, the defendant
is liable, is not faulty, as ignoring the question as to the plaintiff's want of
ordinary care and prudence.
11. Same — in respect to two hypotheses. Where a case presents two
hypotheses, an instruction based upon one, only, which states the law cor-
rectly as to that, is not erroneous in not stating the law upon the other, when
it does not assume to do so, especially when the other party procures other
instructions expressing the law upon that hypothesis.
12. Same — generality — in respect to several counts. Where there is
evidence tending to prove each of several counts in a declaration, all seeking
a recovery for a single injury, but on different grounds, it is sufficient, if the
instructions are general, if the principles announced are applicable to the
declaration generally. The other party may, by instruction, call the attention
of the jury to the allegations of the several counts, if desired.
13. Same — whether based on evidence. Where there is evidence tending
to prove a material fact in issue, an instruction based upon the belief of such
fact from the evidence, is not erroneous as assuming such fact.
14. Allegations and proofs — as to the date of an occurrence. In a
suit to recover for a personal injury alleged to have been received through
negligence, on a day named, the instructions need not be limited to what hap-
pened on that day, when only one injury is claimed. The exact date in such
case is never important, except to save a misunderstanding as to the trans-
action actually involved.
15. Appeal — reviewing disputed questions of fact. In actions to recover
for a personal injury on the ground of negligence, controverted questions of
fact found by the trial and Appellate courts in the same way, can not be re-
viewed by this court; nor where there is evidence tending to prove an alle-
gation, can this court inquire into its weight.
Appeal from the Appellate Court for the First District ; — •
heard in that court on appeal from the Circuit Court of
Adams county ; the Hon. John H. Williams, Judge, presiding.
Messrs. Marsh & McFadon, for the appellant :
The second instruction, near its close, presupposes that
plaintiff "was precipitated and thrown to the ground, " while
she fell by her own weight, which is essentially different.
(Garrison v. Chicago, 97 111. 68.) There was nothing in the
evidence on which to base the instruction, and it should not
have been given. Railroad Co. v. Benton, 69 111. 174.
222 H. & St. J. K. E. Co. v. Martin.
Brief for the Appellee.
This instruction also entirely ignores the question whether
an ordinarily prudent person would have attempted to pass
from one car to another, on the request of a servant of ap-
pellant, under the circumstances. Railroad Co. v. Sykes, 96
111. 171; Railway Co. v. Krouse, 30 Ohio St. 231; Railroad
Co. v. Randolph, 53 111. 512; Price v. Railway Co. 72 Mo.
418 ; Dots v. Railway Co. 59 id. 37.
It is also bad in telling the jury that a recovery might be
had for an injury by either one of the negligent acts charged.
The charge of negligence being in the conjunctive, the plain-
tiff was bound by the description of her tort as laid in the
conjunctive. Butterson v. Railway Co. 49 Mich. 187; Rail-
road Co. v. Marcott, 41 id. 435 ; Bloomington v. Goodrich, 88
111. 558; 1 Chitty's Pleading, (7th Am. ed.) 427.
On such an allegation of negligence it was error to tell the
jury that plaintiff could recover if negligence in either the
moving of the engine or coupling cars was proven. Price v.
Railway Co. 72 Mo. 416.
The second instruction, in so far as it relates to the dam-
ages, is bad, because it fails to exclude from the jury the idea
that appellee could recover for any aggravation of her injuries
by her own neglect in treatment. Railway Co. v. Rector, 104
111. 305; Railway Co. v. Eddy, 72 id. 140; Hutchinson on
Carriers, sec. 809.
The fourth instruction for appellee was erroneous, in direct-
ing the jury that mental suffering was a proper element of
damages. Joch v. Dankwardt, 85 111. 332 ; Railroad Co. v.
Sutton, 53 id. 399 ; 2 Greenleaf on Evidence, sec. 267.
Messrs. Ewing & Hamilton, for the appellee :
The plaintiff's first and second instructions do not assume
that defendant's train was already made up. It is not neces-
sary that a train be made up before one can become a pas-
senger. Railroad Co. v. Perry, 58 Ga. 461 ; Railroad Co. v.
Martin, 11 Bradw. 389.
H. & St. J. K. E. Co. v. Martin. 223
Opinion of the Court.
When an instruction is given, this court will presume, unless
the Appellate Court certifies otherwise, that there was evidence
on which to base it. Railway Co. v. Henks, 91 111. 409.
The circuit court did not err in giving appellee's second
instruction to the jury. Railroad Co. v. Martin, 11 Bradw.
388.
Appellee entered the train after it was in position for the
reception of passengers, and had been announced as ready
by the conductor. It was not negligence for appellee to pass
from one car to another, under the direction of an employe
on the train, while the train was standing still. Railroad
Co. v. Sykes, 96 111. 172.
Appellee was only bound to exercise ordinary diligence in
endeavoring to be cured. She was not required to employ the
most skilled surgeon, and is not responsible for her surgeon's
mistakes, if she used ordinary care and diligence in securing
medical attendance. Appellee's third instruction was prop-
erly given. Railroad Co. v. Martin, 11 Bradw. 388 ; Railway
Co. v. Peyton, 106 111. 534.
Appellee's fourth instruction was properly given to the jury.
Railroad Co. v. Perry, 58 Ga. 461.
Appellee's fifth instruction correctly states the law. It
limits the mental suffering for which appellee can recover, to
such as resulted from the physical injuries complained of.
Railroad Co. v. Stables, 62 111. 320.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
Appellee and her husband having procured tickets entitling
them to be carried from Quincy, in this State, to Kansas City,
in Missouri, took seats in the waiting room at the Quincy
depot some minutes before the time fixed for the departure
of appellant's train. She introduced evidence, upon the trial,
to the effect that after they had been seated thus for a brief
time, the conductor of appellant's train entered the waiting
224 H. & St. J. E. B. Co. v. Martin.
Opinion of the Court.
room and publicly announced that appellant's train for Kan-
sas City was ready for departure ; that thereupon appellee
and her husband, and a number of other persons, arose and
proceeded to the train, which was standing alongside the
platform used by appellant, and entered the hindmost car in
the train; that this car being -full, they passed through it,
and entered the next car forward, and that car also being
full, they then passed through it and into the next forward
car, which was also full; that there some man arose and
gave appellee a seat, which she accepted, her husband mean-
while being compelled to remain standing; that about the
time appellee took the seat thus given her, an employe of
appellant entered the car and requested the passengers to be
patient for a moment, promising that they would add another
car to the train ; that soon after this announcement there
was the jar forward of one car striking against another, and
a moment later an employe of appellant entered the car in
which appellee was sitting, through its forward door, and
notified the passengers that the car in front was ready ; that
thereupon some ten or twelve persons passed on and into the
car in front, and appellee attempted to also do so, but just
as she caught the rail of the forward car, and was in the act
of stepping upon the platform of that car, it moved forward,
leaving the car from which she was trying to pass, stationary,
and by reason thereof she fell or was precipitated to the
ground. She was soon after taken up badly injured, and in
an insensible condition, and placed in the car in which she
had been seated. She remained in the car, and in a brief
time became conscious, and continued her journey notwith-
standing her injuries. Appellant owns no track or depot in
Quincy. Its cars cross the river and enter the depot of the
Chicago, Burlington and Quincy Eailroad Company on the
tracks of that company, and its trains are made up in Quincy
by employes of the Chicago, Burlington and Quincy Eailroad
Company.
H. & St. J. E. K. Co. v. Martin. 225
Opinion of the Court.
The instructions given to the jury upon the trial, at the
instance of appellee, are as follows :
"1. The court instructs the jury, that if they believe, from
all the evidence in this case, that on or about the 16th day of
February, 1880, the defendant was controlling and operating
a train of cars on a railroad in this county, and that the de-
fendant received the plaintiff on its cars as a passenger, for
hire, then the court instructs the jury that the defendant was
bound to make up its train, couple its cars, and manage and
control its cars and engines in such a careful, skillful and
prudent manner as to carry the plaintiff with reasonable safety
as such passenger.
"2. If the jury believe, from all the evidence in this case,
that the plaintiff, on or about the 16th day of February, A. D.
1880, had purchased a ticket over the defendant's road from
the city of Quincy, Illinois, to Kansas City, Missouri, and
on or about that day became a passenger on the defendant's
train of cars, to be carried from said Quincy to said Kansas
City, then the law imposed upon the defendant the duty of
using all necessary and reasonable skill, care and caution in
making up and running said train, necessary for the reason-
ably safe conveyance of the plaintiff as such passenger. And
if the jury further believe, from the evidence, that while the
plaintiff was so a passenger on defendant's train of cars, she
was requested by an employe or servant of the defendant to
pass from the car in which she was, to the car immediately
in front thereof, and that while she was in the act of passing
from one car to the other in obedience to such request, by the
carelessness and negligence of the defendant in making up its
said train, and failing to sufficiently couple its said cars, or
by the carelessness and negligence of the defendant in moving
its engine and the cars attached thereto without sufficiently
and securely coupling its cars, and without any fault or neg-
ligence on the part of the plaintiff, the engine and a part of
15—111 III.
226 H. & St. J. E. K. Go. v. Martin.
Opinion of the Court.
the train of the defendant was started forward, and the car
from which the plaintiff was passing was detached and sepa-
rated from the car into which she was going, and the plaintiff
was thereby, without any negligence or fault of her own, pre-
cipitated and thrown between said cars to the ground, and
thereby injured, then the jury should find the defendant
guilty, and assess the plaintiff's damages at such sum, not
exceeding $10,000, as they may believe, from all the evi-
dence, she has sustained.
"3. Although the jury may believe, from the evidence, that
the defendant's train of cars, testified about by the witnesses
in this case, was made up by the servants and employes of
the Chicago, Burlington and Quincy Kailroad Company, and
that such servants and employes had the control and man-
agement of said cars until said train was made up and ready
to start on its run over the defendant's road, — still, if the
jury further believe, from the evidence, that said servants
and employes of the Chicago, Burlington and Quincy Bail-
road Company so made up and had control of said train and
cars with the consent of the defendant, and under an agree-
ment between the defendant and said Chicago, Burlington
and Quincy Bailroad Company, then the court instructs the
jury, that for the said purpose of making up and managing
said train and cars until said train was ready to start on its
regular run, the said servants and employes of the Chicago,
Burlington and Quincy Kailroad Company so engaged were
the servants and employes of the defendant.
"4. The court instructs the jury, that in this case it is
immaterial whether the defendant actually owned the cars or
the engine forming the train on which plaintiff was a passen-
ger at the time of the supposed injury testified about, or not ;
but if the jury believe, from all the evidence in this case, that
the plaintiff had purchased a ticket for her conveyance as a
passenger over the railroad of the defendant, and had been
received by the defendant in a car run and operated by said
H. & St. J. K. E. Co. v. Martin. 227
Opinion of the Court.
defendant, for the purpose of carrying her as a passenger,
and that while so a passenger on a car run and operated by
the defendant, by the carelessness and negligence of the de-
fendant, and without any fault or negligence on her part, the
plaintiff was injured in manner and form as alleged in the
declaration in this case or some count thereof, then the jury
should find the defendant guilty, and assess the plaintiff's
damages at such amount as, from all the facts and circum-
stances in evidence, they believe she has sustained, not ex-
ceeding $10,000.
" 5. In determining the amount of damages the plaintiff is
entitled to recover in this case, if any, the jury have a right
to, and they should, take into consideration all the facts and
circumstances in evidence before them, the nature and extent
of the plaintiff's physical injuries, if any, testified about by
the witnesses in this case, her suffering in body and mind, if
any, resulting from such injuries, and also such prospective
suffering and loss of health, if any, as the jury may believe,
from all the evidence before them in this case, she has sus-
tained or will sustain by reason of such injuries. "
Numerous objections are urged against these instructions,
and such as we deem important will be noticed in the order
in which they are urged in appellant's argument.
It is contended the first instruction, and the first part of
the second instruction, are bad, because in each a disputed
fact in the case is assumed, namely, that at the time plaintiff
was injured the train on which she was injured was already
made up. We can not concur in this view. The question
whether appellee was received by appellant as a passenger
on its train, is left to the jury for their determination, as a
question of fact, from the evidence. If they shall find that
she was thus received, they are told what then was the duty
of appellant in regard to making up its train. All that is
assumed is, that a passenger may be received by the carrier
228 H. & St. J. K. R. Co. v. Martin.
Opinion of the Court.
on its train before the train is completely made up, and of the
correctness of this there can be no question. A carrier is
under no obligation to do so, but it may if it will ; and when it
does so, the duties declared in the instructions legally follow.
Instances are quite common where, as appellee claims was the
fact here, after a train is supposed to be fully made up and
passengers are received upon it, the number of passengers is
discovered to be too great for the number of cars in the train,
and it becomes necessary to add other cars ; and in such
cases, and in all cases where, by the consent of those in charge
of the train, passengers are admitted to seats in the cars with
a view to transportation, before the train is made up, the rail-
road company owes to the passengers the duty in making up
its train here pointed out.
Again, it is contended that both these instructions are bad,
because not limited to what happened on the 16th day of
February, 1880. We can not conceive how this can be im-
portant, since it is not claimed on any side that appellee was
injured oftener than once, or had more than one cause of
action on the ground of negligence, against appellant. The
exact date in such cases can never be important save to
prevent a misunderstanding as to the transaction actually
involved in the suit. Appellant claims but one transaction,
and that is detailed, as seen, by witnesses on each side.
Whether its actual date was the 16th of February, or on any
other day in that year, is not perceived to be of any import-
ance.
Appellant also contends that the second instruction is ob-
noxious to these further objections : First, it presupposes,
near its close, that appellee was precipitated and thrown to
the ground, which, it is insisted, is not sustained by the evi-
dence ; second, it ignores the question whether an ordinarily
prudent person would have passed from one car to the other,
in obedience to the request of the servant of appellant men-
tioned in the instruction, at the time when and under the
H. & St. J. E. E. Co. v. Martin. 229
Opinion of the Court.
circumstances under which appellee attempted to do so ;
third, it ignores the question whether an ordinarily prudent
person would, under the facts of the case, have gotten upon
the train at all, and would have been where appellee was at
the time of receiving her injury ; fourth, it tells the jury that
if appellee was injured, either by the carelessness and negli-
gence of appellant in making up its trains and failing to
sufficiently couple" its cars, or by the carelessness and negli-
gence of appellant in moving its engine and the cars attached
thereto, appellee ought to recover, whereas these things are
charged in the declaration, conjunctively ; fifth, there was no
evidence that the engine and part of the train of appellant
were started forward by reason of the carelessness of appel-
lant in coupling its cars. We deem each of these objections
untenable.
First — Whether the evidence sustains the allegation that
appellee was precipitated and thrown to the ground, was for
the Appellate Court to determine. There was evidence tend-
ing to prove the allegation, and we can not inquire into the
weight of it. Indeed, if the testimony given by appellee and
her husband is believed, the proof was ample. They say,
when she was in the act of passing from one car to the other
she reached forward and caught the railing of the forward
car, and before she could step on to its platform it moved
away from the car on the platform of which she was standing,
and thus necessarily pulled her out of balance, and thereby
precipitated her to the ground.
Second — The instruction expressly provides that it shall
appear that appellee acted "without any fault or negligence"
on her part. If an ordinarily prudent person would not have
passed from one car to the other, in obedience to the request
of the servant, under the circumstances, it is impossible that
appellee could have done so without any fault or negligence
on her part. The principle contended for under this objec-
tion is practically and sufficiently expressed in the instruction.
230 H. & St. J. K. K. Co. v. Martin.
Opinion of the Court.
Third — This objection is but a repetition, in a little differ-
ent form, of the second objection, and the answer to that is
likewise an answer to this. Ordinarily, where an employe
upon a train makes public announcement of any matter
affecting the safety or convenience of the passengers in being
carried upon the train, — as, for instance, where a car is over-
crowded, that another coach has been added and is in readi-
ness for their reception or the reception of such as choose to
enter it, — and no one connected with the train contradicts
such announcement, passengers are authorized to assume and
act upon its truth. And so here, as claimed by appellee, if
they were notified, first, that a car would be added, and after
hearing the noise and feeling the motion caused by one car
bumping against another, they were informed that such car
had been added, they were justified in assuming that to be a
fact. Undoubtedly, if, when the car door was opened, they
had perceived no car was there, or if near, that it was too far
from the car on which they were, to be reached by a step,
they must have acted upon the knowledge of what they thus
saw, and not then upon the false declaration of the employe ;
but seeing the car in proper place on the train, they would
have the right to assume that it was there for the purpose
declared by the employe, and that it was safe to attempt to
pass into it. They could not be expected to know that it was
not properly coupled.
Fourth — Under the first and fourth counts the liability
charged upon appellant, is because of its failing to make up
its train, and to sufficiently couple its cars, and the liability
charged in the second and third counts is because of appel-
lant's moving its engine and cars attached thereto without
sufficiently and securely coupling its cars, — hence, if, as the
instruction told the jury, appellee was injured either by the
carelessness and negligence of appellant in making up its
trains and failing to sufficiently couple its cars, she was en-
titled to recover, and this under the first and fourth counts •
H. & St. J. E. R. Co. v. Martin. 231
Opinion of the Court.
or, if she was injured by the carelessness and negligence of
appellant in moving its engine and the cars attached thereto
without sufficiently and securely coupling its cars, she was
also entitled to recover, and this under the second and third
counts. The alternative indicates simply the distinct grounds
of action relied upon in the different sets of counts. Proof
of either was sufficient.
Fifth — The instruction does not submit the question to the
jury whether the engine and part of train on which appellee
was, were started forward by reason of the carelessness of
appellant in coupling its cars. The question submitted is,
whether appellant, while appellee, in obedience to the request
of an employe of appellant, and without any fault or negli-
gence on her part, was passing from one car to another, by
carelessness and negligence in moving its engine with the cars
attached thereto when they were not sufficiently and securely
coupled, precipitated and threw her to the ground. This is
not the precise phraseology, but it is the clear meaning of
that used, and the evidence tends to prove that appellee was
thus injured. It needs no demonstration that if appellant in-
vited passengers into a coach, — or what, in effect, is the same
thing, notified them it was ready for the reception of passen-
gers,— and they thereupon proceeded to enter the coach, but
before they had time to do so the engine was started forward,
and the cars parted because they were not properly coupled,
and one was injured thereby, appellant was guilty of such
negligence as renders it responsible for the injury thus done.
The instruction is not entirely free from objection, but we
are of opinion that it could not have misled the jury, and
that appellant was not materially prejudiced by it.
The third instruction is objected to because it does not
state the law upon the hypothesis that the evidence shows
that appellee left the waiting-room and got upon the train
before it had been placed in position to receive passengers, etc.
It is enough to say the third instruction does not assume to
232 H. & St. J. K. K. Co. v. Martin.
Opinion of the Court.
express what is the law upon that hypothesis. It correctly
expresses the law upon the hypothesis it assumes, and the
court, at the instance of appellant, in other instructions ex-
pressed the law upon that hypothesis.
Objection is urged against the fifth instruction, on the
grounds that it informs the jury that mental suffering was a
proper element of damages ; that it practically assumes that
appellee is entitled to recover damages, and that it tells the
jury they should take into consideration the various elements
of damages therein mentioned, etc. The objection, in our
opinion, is not well taken on either ground. Where suffering
in body and mind is the result of injuries caused by neg-
ligence, it is proper to take them into consideration in esti-
mating the amount of damages. (Indianapolis and St. Louis
R. R. Co. v. Stables, 62 111. 320.) The instruction does not
assume that appellee is entitled to recover damages, but leaves
that question to be determined by the jury, and the elements
pointed out are those proper for the consideration of the jury.
The discretion of the jury in exercising an intelligent judg-
ment is not, as counsel seem to suppose, interfered with.
Four objections are urged against the fourth instruction:
First, because it assumes that appellee was a passenger upon
a train of appellant at the time she received her injuries;
second, because there was no evidence that at the time appel-
lee received her injuries, the car she was in, was run and
operated by appellant ; third, because it does not exclude from
the jury the idea that appellee could not recover for any
aggravation of her injuries, or any injuries produced by her
own neglect in procuring proper treatment ; and fourth, the
court should not have submitted the question of appellee's
right to recover, under the third and fourth counts of the
declaration, to the jury, as is done by this instruction, because
there is no evidence that the accident happened in the man-
ner therein stated. These objections are all susceptible of
satisfactory answers.
H. & St. J. E. E. Co. v. Martin. 233
Opinion of the Court.
First — The instruction is not directed to the question
whether appellee was a passenger on the train of appellant
at the time she received her injuries, but to the question of
the ownership of the cars and engine composing the train on
which she was at that time, and correctly lays down the law
that it is sufficient if appellee had purchased a ticket for her
conveyance as a passenger over the railroad of appellant, and
had been received by appellant in a car run and operated by
it, for the purpose of carrying her as a passenger, etc. The
question whether appellee was a passenger is fully and fairly
presented by instructions given at the instance of appellee,
and there is nothing in this repugnant to those. It is here
fairly left to the jury to determine, from the evidence, whether
the contemplated hypothesis upon which appellant is to be
held liable, exists.
Second — The evidence shows that the train was made up
by employes of the Chicago, Burlington and Quincy Eail-
road Company, and on its tracks, but for the appellant, and
although a portion of the cars in the train came from the
Chicago, Burlington and Quincy company, and the balance
came from the Wabash, St. Louis and Pacific Eailway Com-
pany, when united they constituted appellant's train ; and the
use of the cars and tracks, and the labor in making up the
train, were all to enable appellant to exercise its functions
and perform its duties as a common carrier, and therefore the
cars and tracks, and the servants employed in making up
the train, so far as the rights of appellee are concerned, are
to be regarded as the cars, tracks and servants of appellant.
Wabash, St. Louis and Pacific Ry. Co. v. Peyton, 106 111. 534.
Third — It was unnecessary that this instruction should
exclude from the jury the idea that appellee could not recover
for any aggravation of her injuries, etc., produced by her own
neglect. That idea is not included in the instruction, and
there is nothing in it repugnant to the principle contended
for by appellant. Under appellee's theory of the case, her
234 H. & St. J. R. R. Co. v. Martin.
Opinion of the Court.
injuries were not thus augmented. If appellant desired an
instruction upon the hypothesis that the evidence showed
appellee's injuries were aggravated by her own neglect, it was
entitled to, as it did, have the court, at its instance, to spe-
cially instruct the jury to that effect. Peoria and Pekin Union
Ry. Co. v. Glayberg, 107 111. 644.
Fourth — In our opinion, there was evidence tending to prove
each count of the declaration. With its weight this court has
nothing to do. Apart from this, however, the instruction is
general, and if its principles are applicable to the declaration
generally, it is sufficient. It was the privilege of appellant
to call the attention of the jury to the different allegations of
the several counts, if it chose to do so, but it is sufficient if
the law, as laid down at the instance of appellee, is correct
and applicable to the case under either count.
Appellant contends that the court erred in modifying its
tenth instruction as asked. As asked, it reads thus :
"Even if the jury believe, from the evidence, that the plain-
tiff in this case was injured on a passenger train of the
Hannibal and St. Joseph Railroad Company, on the 16th day
of February, 1SS0, yet if the jury further believe, from the
evidence, that the said company, at said time, had a platform
in the depot of the Chicago, Burlington and Quincy Railroad
Company, designated by it for the reception of its passengers,
and that said plaintiff was injured while said train was being
made up and before said train had been placed in position
for the reception of its passengers at said platform, the court
instructs the jury that the relation of carrier and passenger
did not subsist, at the time of the occurrence of said injury,
between the plaintiff and the defendant, and the verdict of
the jury should be for the defendant. "
The court modified it by adding : "Unless the jury further
believe, from the evidence, that some agent or servant of the
defendant had notified plaintiff that said train was ready for
H. & St. J. E. E. Co. v. Martin. 235
Opinion of the Court.
the reception of passengers, and that in pursuance of such
notice said plaintiff had got on said train of cars before she
received the alleged injury, if the jury believe, from the evi-
dence, she received any injury."
The objection taken to this modification is, that the fact
that some agent or servant of appellant notified appellee that
the train was ready, would not have justified her in rushing
upon a train not ready for passengers. We concur with ap-
pellant in the view that if appellee saw a danger before her,
she would not be justified in rushing upon it merely because
appellant's agent or servant invited her to do so ; but if
appellant's servant or agent, as contemplated in this modifi-
cation, told her that a train was ready for the reception of
passengers, and she thereupon entered the train, she became
a passenger. She was there by appellant's invitation, and
was under its control by the consent of both. There is no
pretence that she incurred any danger in getting on the
train, — i. e., in becoming a passenger. Her injury was re-
ceived afterwards, and in passing from one car to another for
more ample accommodations.
Many of the questions discussed in the printed arguments
before us relate to the effect and weight of the evidence, and
are consequently finally settled by the judgment of the Appel-
late Court.
We are unable to perceive any such substantial error in
the record as would justify a reversal of the judgment below,
and it will therefore be affirmed.
Judgment affirmed.
236 Danforth v. Danforth.
Syllabus. Statement of the case.
Anna Danforth
v.
George W. Danforth.
Filed at Ottawa September 27, 1884.
1. Death of defendant pending suit — entering judgment. Where
the court once acquires full jurisdiction, in a regular manner, during the
lifetime of both parties, the death of the defendant after trial, but before
judgment, will not abate the suit and render judgment against him void. At
most it is but an irregularity.
2. Death of pakty to a decree for divorce — as affecting the right of
appeal by the survivor. The party against whom a decree of divorce has
been rendered has the right to have the same reversed for error, and this
right is not defeated by the death of the other party pending the appeal or
writ of error. The divorced wife may, after her husband's death, prosecute
a writ of error to reverse the decree, and thereby be restored to all her rights
as widow in the estate of her deceased husband.
3. Entering judgment as of the trial term, at a subsequent term —
intervening death of one of the parties. Where a trial or hearing of a cause
has been regularly had, and judgment is delayed by motion for new trial, or
by the court taking the case under advisement, and one of the parties dies
before the announcement of judgment, the court may direct the same to be
entered as of the preceding term at which the trial was had. Its entry at the
subsequent term is but an irregularity, and the judgment will not be void.
4. Same — amendment of record in that regard. On appeal from a decree
of divorce, and a refusal to open the decree and allow a defence, both parties,
at the September term, 1882, submitted the cause to this court. The appellee
died before the next term, at which time the opinion of the court was filed
and judgment of reversal entered. The attention of the court was not called
to the fact of the death of the appellee. At the September term, 1883, this
court, on appellant's motion, amended the record of the judgment so as to
make it appear as of the September term, 1882.
Motion in this court to amend the record so as to give
effect to the judgment as of a prior term.
On the 15th day of July, 1881, George W. Danforth filed
his bill in the circuit court of Iroquois county, against Anna
Danforth, his wife, to obtain a divorce, on the ground of ex-
treme and repeated cruelty. Upon an ex parte hearing, the
DaNFORTH V. DaNFORTR*. 237
Brief for the Appellant.
circuit court found the defendant guilty of the charges in the
bill, and decreed a divorce ; and it appearing that the parties
had agreed upon the amount the defendant was to receive in
lieu of alimony, dower, and all other right, claim and interest
which she then had or might have in, to and upon the com-
plainant's estate, the court decreed her the sum so agreed
upon. At a subsequent day of the same term the defendant
entered her motion to set aside the decree, and that she be
let in to defend the suit, for the reason the decree had been
obtained by fraud, in which she had not participated. This
motion the circuit court overruled, and the defendant appealed
to the Appellate Court for the Second District. The Appellate
Court affirmed the order an,d decree of the circuit court, and
from that judgment of affirmance the defendant appealed
to this court. After the argument and submission of the
cause at the September term, 1882, on or about the 18th
day of October, 1882, the said George W. Danforth departed
this life intestate, leaving no relatives or heirs in this State,
except Asa H. Danforth, a brother, and the appellant. No
opinion was filed in the cause until March 28, 1883, when
one was filed, and judgment was then entered reversing the
decree of the Appellate Court. At the September term, 1S83,
being the next term after the opinion was filed, the appellant
appeared and made her motion in this court to enter the
judgment of March 28, 1883, as of the date said cause was
taken under advisement by this court. Notice of the motion
was given to all parties in interest, who appeared by counsel
and resisted the motion.
Messrs. Doyle & Morris, for the appellant :
Where one of the defendants dies after argument and before
judgment, the decree will be entered so as to have relation
back as of the day of the final hearing. Campbell v. Meshin,
4 Johns. Ch. 334; Benson v. Wolverton, 1 C. E. Green, 110;
Durham v. Dolling, id. 310; Bank v. Weisinger, 2 Pet. 481.
238 Danforth v. Danforth.
Brief for the Appellee.
The rule of law is the same where all the parties die, either
plaintiff or defendant. Vroon v. Ditmas, 5 Paige, 528 ; Wood
v. Keys, 6 id. 478; Emery v. Parrott, 107 Mass. 104. But
an order of court is necessary. Durham v. Dolling, ICE.
Green, 310; Rack-man v. Decker, 12 id. 244.
Courts have allowed the application to be made by a third
person, and the decree entered nunc pro tunc. Stoney v.
Saunders, 1 H. & J. 341.
A decree nunc pro tunc is always admissible where a decree
was ordered or intended to be entered, and it was omitted to
be done only by inadvertence of the court. Gray v. Brignar-
dello, 1 Wall. 627.
Where a judgment has been erroneously entered, the court
may, at a subsequent term, from its minutes or other suffi-
cient evidence, enter a nunc pro tunc order making the cor-
rection; and an affidavit setting up the facts which are
uncontradicted, will be sufficient. People ex rel. v. Quick, 92
111. 580.
Where one of the parties dies after the submission of the
cause, the court protects the party bringing the suit, from
any prejudice he might suffer by the death of his adversary
after the suit was submitted ; and instead of permitting the
action to abate, will direct the judgment to be given effect, if
necessary, as far back as the day of the submission. (Free-
man on Judgments, 57, 58.) Now, this is exactly in point,
and all that is asked in the case at bar.
If jurisdiction is obtained by the court in lifetime, a judg-
ment rendered after death is not void. Freeman on Judg-
ments, sec. 140.
Mr. J. W. Dougherty, for the administrator and heirs of
George W. Danforth, contended that the appeal was only
from the order of the circuit court refusing to set aside the
decree of divorce, — not from the decree of divorce. That
remains unquestioned, by appeal or otherwise.
Danforth v. Danforth. 239
Opinion of the Court.
The death of the appellee effectually put a stop to all fur-
ther proceedings in the case, and the judgment rendered in
this court is a nullity. Life Association of America v. Fassett,
102.111. 315.
There can be no right of action or defence surviving to the
heirs or next of kin, in cases of divorce. The object of the
suit is to dissolve the marital relation, and that having been
ended by death, the suit then pending can not be revived.
What can be gained by the entry of the proposed order?
Appellant can not be restored to the condition of a feme
covert, for the marital relation has been severed by death ;
nor can her property rights be affected, for the succession of
the estate passed, at the time of appellee's death, to parties
not now in court, and their interests can not be affected by a
nunc pro tunc order of reversal. Freeman on Judgments,
sec. 66; McCormick v. Wheeler, 36 111. 114.
If, as in Smith v. Brittenham, 88 111. 29.1, 94 id. 624, 93
id. 188, Chicago v. Hall, 103 id. 342, and Thrifts v. Fritz,
101 id. 457, only that part of the record is brought up by
appeal which appertains to the motion to let appellant in to
defend, then this court has no jurisdiction to reverse the
principal decree, and it, notwithstanding an abatement or
reversal of the order appealed from, will still stand in full
force.
Mr. Justice Dickey delivered the opinion of the Court :
This cause was, at the September term, 1882, properly
submitted to this court by the parties, for its final judgment,
upon the merits. Both parties then being in life, this court
thereby acquired complete jurisdiction over the parties and of
the subject matter of the controversy, which was not divested
by the subsequent death of the appellee. No question is
made but that a judgment of this court, if made at that term,
would have been valid and conclusive upon the parties prop-
erly before it. Formerly, the judgments of this court were
MO Danforth v. Danforth.
Opinion of the Court.
announced and entered of record bnly in term time, and
usually at the term at which the causes were submitted, and
opinions were afterwards prepared and filed. This practice
was changed many years ago, and to avoid delays as far as
practicable, a statute was passed authorizing the rendering
and entering of judgments and orders in vacation in all cases
which had been taken by the court under advisement.
The first question presented relates to the validity of the
judgment of this court, as it now stands. Is it void for want
of jurisdiction, or is it binding upon those succeeding to the
estate of the appellee? Where the sole defendant is dead
when the suit or writ of error is brought, it may be true that
a judgment against the deceased defendant is a nullity, for
the reason that the court never acquired jurisdiction of the
cause. In such a case the court never acquires any authority
to act or take any step. But that is not the case here. Here,
the court, before taking any steps, was clothed, by the act of
the parties and the law, with full jurisdiction and rightful
authority to render the judgment it did. Did the death of
the appellee, — not brought to the notice of the court by plea,
suggestion, or otherwise, — deprive it of such jurisdiction law-
fully acquired ? We think not.
In Reid v. Holmes, 127 Mass. 326, the court say: "If the
fact agreed, in the case stated, of the death of the defendant
after the default and before judgment, is competent to be con-
sidered, it does not show that the judgment is absolutely void.
The court, at the time of the bringing of the former action,
had jurisdiction of the subject matter and of the parties, and
might, after the death of the defendant, have rendered judg-
ment against him as of a previous term. (Kelley v. Riley,
106 Mass. 339, 341; Tapley v. Martin, 116 id. 275; Tapley
v. Goodsell, 122 id. 176, 181.) Or the judgment actually
entered might, on motion of the plaintiff, have been amended
so as to stand as a judgment nunc pro tunc, or have been
vacated, and the administratrix summoned in to defend the
Danforth v. Danforth. 241
Opinion of the Court.
action." The court farther say, even if the judgment was
erroneous, and might be reversed for irregularity, yet neither
party could collaterally dispute its validity, — citing Hendrick
v. Whittemore, 105 Mass. 23 ; Henderson v. Stamford, id. 504 ;
Penhallow v. Doane, 3 Dall. 54; Warder v. Tainter, 4 Watts,
270 ; Yaple v. Titus, 4 Pa. St. 195 ; Evans v. Spurgin, 6 Gratt.
107. The court further say : "In a similar case, Chief Jus-
tice Tindall said, that while the judgment was suffered to
exist on the rolls of the court without any application to set
it aside, it could only be treated as a valid judgment ; and
that if any application were made, it should have been to the
court in which the judgment was rendered, which had power
to amend the proceedings, in order to obviate the alleged
irregularity. Bridges v. Smyth, 1 Mo. & Sc. 93, 99 ; S. C.
8 Bing. 29, 32." The death of a party in a chancery case
does not, ipso facto, abate the suit without any order of the
court. Cook's Exr. v. Turpin, 10 B. Mon. 245.
In Spaidding, Admr. v. Wathen, 7 Bush, (Ky.) 662, an ap-
peal was prosecuted to the Court of Appeals after the death
of the appellant, without knowledge of his death, and the
judgment below reversed, and the court held that its judg-
ment of reversal was not void, but binding, and say: "The
death of John after judgment in the circuit court, and before
the appeal was prosecuted, did not take away from this court
the right to entertain it. Kegularly, a personal representa-
tive should have been appointed, and the appeal prosecuted
in his name ; but we are not prepared to say the want of a
personal representative renders void the appeal, and all pro-
ceedings had under the same. * * * Where a plaintiff
dies pending his suit, his death may be pleaded in abate-
ment, but the defendant may waive such plea, and permit
the cause to be tried upon its merits, without revivor. The
Supreme Court of Illinois held in the case of Camden et al.
v. Robertson, 2 Scam. 508, that the death of one of the plain-
tiffs before the commencement of the suit was no bar to the
16—111 III.
242 Danforth v. Danforth.
Opinion of the Court.
action, and could only be made available to the defendant
by a plea in abatement setting up such fact ; and in Case
v. Ribelin, 1 J. J. Marsh. 30, in which the plaintiff in the
circuit court died before judgment, this court held that the
judgment was not void, and that it could only be corrected
by the court in which it was rendered."
Freeman, in section 140 of his work on Judgments, says :
"If jurisdiction be obtained over the defendant in his life-
time, a judgment rendered against him subsequently to his
death is not void," — citing in support of the text, Collins v.
Mitchell, 5 Fla. 364; Loring v. Folger, 7 Gray, 505; Coleman
v. McAnulty, 16 Mo. 173 ; Yaple v. Titus, 44 Pa. St. 203 ; Day
v. Hamburg, 1 Browne, 75 ; Gregory v. Haynes, 21 Cal. 443.
Again, in section 153, he says: "Even in such cases the
judgment is simply erroneous, but not void. This is because
the court, having obtained jurisdiction over the party in his
lifetime, is thereby empowered to proceed with the action to
final judgment ; and while the court ought to cease to exercise
its jurisdiction over a party when he dies, its failure to do so
is an error to be corrected on appeal, if the fact of the death
appears upon the face of the record, or by writ of error coram
nobis, if the fact must be shown aliunde."
In Stoetzell et al. v. Fullerton, 44 111. 10S, the court, in speak-
ing of the rule that the death of a party abates'the suit, said :
"This rule is not universal at common law, as appears from
the case cited by appellee's counsel, (Underhill v. Deuereux,
2 Saund. 72, note i,) as in a quare imp edit by two, or in an
audita querela by two, or in debt by two executors, when one
was summoned and severed, and dies, the writ did not abate ;
and when one of two plaintiffs died before interlocutory judg-
ment, but the suit went on to execution in the names of both,
the plaintiff was permitted, even after a motion to set aside
the proceeding for irregularity, to suggest the death of the
other on the roll, and to amend the ca. sa., without paying
costs. (Newnham v. Law, 5 Term Eep. 577.) The statute
Danforth v. Danforth. 243
Opinion of the Court.
of 8 and 9 William III, chap. 11, as well as our own, was
designed to prevent the abatement of any case where the
cause of action would survive on the suggestion of the death,
which suggestion is a matter of form, and may be made by
either party. The cases cited show that it has been often
allowed to make the suggestion nunc pro tunc, and it should
be allowed in furtherance of justice, and in support of the
right. Ncwnhamv. Law, supra; Hamilton v. Holcomb, 1 Johns.
Cas. 29."
But it is urged, that conceding the foregoing to be good
law, it has no application to a suit for a divorce. It is
claimed that the death of either party puts an end to all fur-
ther legal proceedings. This is true where the death takes
place before any final decree of divorce. (Ewald v. Corbett,
32 Cal. 493; Swan v. Harrison, 2 Coldw. 534; Pearson v.
Darrington, 32 Ala. 227.) But where a decree of divorce has
been improperly obtained, and the proceedings are erroneous,
the party whose property rights have been injuriously affected
by such decree ought not to be concluded by reason of the
subsequent death of the other party. While both parties live,
a writ of error lies to reverse an erroneous decree of divorce,
the effect of which is to restore both parties to their former
statics of husband and wife, in law, and after the death of
one it ought to lie in favor of the other party, not for the
same purpose, but to restore the survivor to his or her rights
of property divested erroneously by the decree. On the re-
versal of a decree of divorce, the parties will be placed in the
position they occupied before the decree w7as entered, and if
one of them has died between the date of the decree of divorce
and its reversal, the survivor procuring the reversal will be
entitled to all rights of succession or dower, and the like, in
the estate of the other, the same as if no divorce had ever
been had ; but in such case the court need not ordinarily
remand the case, as no other decree of divorce can ever
be had.
244 Danforth v. Danforth.
Opinion of the Court.
This court has decided that a divorced wife, after the death
of her husband, may prosecute a writ of error to reverse the
decree of divorce, and thereby be restored to all her rights as
widow in the estate of her deceased husband. (Wren v. Moss
et al. 2 Gilm. 72.) In that case this court say: "The plain-
tiff in error complains that she has been injured by an erro-
neous decree. If so, she ought to find a remedy by writ of
error, for although by the death of the complainant the par-
ties were divorced, and no further proceedings could be had,
yet the mode of effecting the same object by a decree will, if
erroneous, unjustly deprive the plaintiff in error of all right
in dower or interest in the personalty. It is plain, therefore,
that she may be greatly aggrieved by the decree, if erroneous.
If aggrieved, she ought to find a remedy by appeal or writ of
error. " The writ of error in that case was so framed as. to
bring before the court all persons whose interests might be
affected, as has been done here, by notice.
If, then, the appellant could have prosecuted her appeal
or writ of error to reverse the decree of divorce even after
her husband's death, and thus remove the bar of that decree
to the assertion of her property rights as widow of the de-
ceased, no reason is seen why she may not do the same thing
where her husband dies after the appeal is taken or writ of
error brought, and after the cause is submitted. The most
that can be said of the entry of final judgment after the death
of the appellee is, that it was irregular and informal. No
valid objection can be urged to its substantial justice. If the
procedure was informal, it seems no objection was taken to
the same by either party, and the attention of this court was
not called to the fact of appellee's death. Until objection
was made to the judgment, appellant might have remained
passive ; but we see no good reason why the informality
may not be corrected in the mode suggested by the appel-
lant,— by directing the amendment of the record so as to
show the entry of the judgment of a date prior to appellee's
Danfoeth v. Danforth. 245
Opinion of the Court.
death. This we clearly have the power to do in furtherance
of justice.
In Wood v. Keyes et al. 6 Paige, 478, the court said: "It
being understood by the court that the complainant's cestui
que trust has died since the hearing of this cause, the decree
must be entered as of the 20th of April, 1836 ; and in case
the trust is at an end, the suit must be properly revived in
the name of the person who has succeeded to the complain-
ant's rights, if further proceedings in the cause shall be found
necessary." In Perry v. Wilson, 7 Mass. 393, it was held
that where an action is delayed for the convenience of the
court, they will take care that no body suffers by such delay.
Therefore, when, after a continuance, by order of court, for
advisement, the defendant in the action died, judgment was
entered as of the former term.
Where an action on a statute was tried before its repeal
took effect, and a verdict rendered for the plaintiff, and ques-
tions of law were reserved, which, after the repeal took effect,
were decided in favor of the plaintiff, the court ordered judg-
ment to be entered on the verdict as of a day previous to the
going into operation of the repealing act. Springfield v. Wor-
cester, 2 Cush. 52, — citing Bingham on Judgments, 95, 96 ;
Key v. Goodwin, 1 Moore & Scott, 620 ; RygJitmire v. Dur-
ham, 12 Wend. 215; Perry v. Wilson, 7 Mass. 395.
Where a plaintiff was non- suited at the trial, and who
applied for a new trial, died while the cause was sub judice,
and a new trial was eventually denied, the defendant was
permitted to enter judgment as of the term succeeding the
non-suit, the plaintiff then being in full life. Spalding v.
Congdon, 18 Wend. 513. To the same effect, see Currier v.
Lowell, 16 Pick. 170; Tooker v. Duke of Beaufort, 1 Burr.
147; OadesY. Woodward, 1 Salk. 87; Tidd's Practice, (1st
Am. ed.) 846; Tapley v. Martin, 116 Mass. 275; Mead v.
Mead, 1 Mo. App. 247 ; Webber v. Webber, 83 N. C. 280 ;
Boyd v. Boyd, 38 Pa. St. 241 ; Jennings v. Ashley, 5 Pike,
216 Danforth v. Danforth.
Opinion of the Court.
128; Pool v. Loomis, id. 110; Davies v. Davies, 9 Ves. Jr.
461 ; Hess v. Cole, 3 Zabr. 116.
But it is urged that the judgment of this court in reversing
the judgment of the Appellate Court can have no effect to
restore appellant to her rights as widow of her deceased hus-
band. It is claimed there were entered two distinct and sep-
arate decrees in the circuit court, — the one for the divorce,
and the last refusing to set aside the decree of divorce and
allow the appellant to defend, — and that she appealed only
from the latter, and not from the decree of divorce, and there-
fore the appellate court can reverse only the order denying
her an opportunity to defend, leaving the decree of divorce in
full force. This court decided that the circuit court erred
in refusing to set aside the decree of divorce, and upon that
ground reversed the judgment of the Appellate Court, and
remanded the cause. This is equivalent to remanding with
directions to reverse the order of the circuit court overruling
the motion to vacate the decree, and to remand the case
to the circuit court, with directions to the circuit court to
allow the motion and vacate the decree.
The motion to amend the record in this court will be
allowed, and the record of the judgment amended so as to
make it appear as of the September term, 1882. When the
case comes before the Appellate Court under this record as
amended, formal regularity will require the death of appellee
to be suggested, and that his legal representatives be made
parties thereto.
Motion allowed.
Steib v. Whitehead. 247
Syllabus.
M. Steib, for use, etc.
v.
William H. Whitehead.
Filed at Springfield September 27, 1884.
1. Gaenishment — trust fund — whether subject to garnishment. A tes-
tator devised his estate to trustees, to be well rented, and kept in repair and
taxes paid, and to be insured against fire, and the trustees to pay over all
remaining rents and income in cash, into the hands of his daughter, "in per-
son, and not upon any written or verbal order, nor upon any assignment or
transfer by" the daughter: Held, that the net income of the estate devised
was not liable to garnishment in the hands of the trustees for debts of the
beneficiary.
2. Will — devise in trust — provisions for protection of beneficiary, as
against debts, improvidence, etc. While it is true that an absolute gift of
property can not be rendered inoperative by conditions annexed, it does not
follow that a parent may not, by will or otherwise, make such a reasonable
disposition of his property, when not indebted, as will effectually secure his
child a competent support for life; and the most appropriate, if not the only,
way of accomplishing this object, is through the medium of a trust.
3. In this case, a testator devised all his lands to trustees, in trust for his
daughter, declaring it to be the duty of the trustees to keep such lands, etc.,
well rented, to make reasonable repairs on the same, to pay promptly all
taxes and assessments thereon, to keep the buildings thereon reasonably in-
sured against damage by fire, and to pay over all remaining rents and income
in cash, into the hands of his said daughter, in person, and not upon any
written or verbal order, nor upon any assignment or transfer by the said
daughter, the trust to cease at her death, and the estate to vest in her heirs,
etc.: Held, that the intention was to place the net income of the property
beyond the control of the daughter and her creditors while in the hands of
the trustees, and that such intention should be enforced by the courts.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — heard in that court on appeal from the Circuit Court of
McLean county ; the Hon. Owen T. Eeeves, Judge, presiding.
Mr. Thomas F. Tipton, for the plaintiff in error:
The fund arising from the rents and profits of the lands
and property in question, and sought to be reached in this
248 Steib v> Whitehead.
Brief for the Plaintiff in Error.
proceeding, is absolute in the beneficiary, and assignable, and
being the property of Mrs. Schonrock, absolutely, is liable to
garnishment. Wells v. Ely, 3 Stockt. 175 ; Lynch v. Utica
Ins. Co. 18 Wend. 245 ; Gleason v. Fay er weather, 4 Gray, 348 ;
Hallett v. Thompson, 5 Paige, 583 ; Livingston v. Stickles, 8 id.
398; Van Renssalear v. Hays, 19 N. Y. 68; Newkirk v. New-
kirk, 2 Caines, 335; McWilliams v. Risley, 2 S. & R. 507;
Walker v. Vincent, 19 Pa. 369 ; Hanly v. Northampton, 8
Mass. 3 ; Schermerhorn v. Negus, 1 Den. 448 ; 2 Redfield on
Wills, sec. 288, note 30 ; Rockforcl v. Hackman, 9 Hare, 475 ;
Keysets Appeal, 57 Pa. St. 236; Koenig's Appeal, id. 352;
Wilkinson v. Wilkinson, 3 Swanst. 528 ; Groves v. Dolphin, 1
Sim. 66 ; 2 Jarman on Wills, (Bigelow's ed.) 24-29, note 2.
That trusts can not be created with a provision that the
equitable estate or interest of the cestui que trust can not be
alienated, is the well settled law of England and most of the
States in this country. Oxley v. Lane, 35 N. Y. 345 ; N orris
v. Beyea, 3 Kern. 273 ; Reifsnyder v. Hunter, 19 Pa. St. 41 ;
Walker v. Vincent, id. 369 ; Yard's Appeal, 64 id. 95 ; Harken's
Appeal, 60 id. 257 ; Gleason v. F ay er weather, 4 Gray, 348 ;
Bank v. Davis, 21 Pick. 42 ; Lane v. Lane, 8 Allen, 350 ; Jones
v. Bacon, 6S Maine, 34 ; Norris v. Hensley, 27 Cal. 439 ; Pace
v. Pace, 73 N. C. 119; Mandelbaum v. McDonnell, 29 Mich.
78 ; 2 Perry on Trusts, sec. 386 ; Story's Eq. Jur. sec. 974 a.
The rule is, that where a grant or devise is made of the
rents, issues and profits of an estate, the legal estate being
vested in a trustee, with a condition annexed that they shall
not be subject to present or future debts, whether the estate
granted or devised be an estate for life or in fee, the condi-
tion is void, as against public policy. Graves v. Dolphin,
1 Sim. 66; Snowden v. Dales, 6 id. 524; Mebane v. Mebane,
4 Ired. Eq. 181 ; Bank v. Forney, 2 id. 181; Foley v. Bun-
nell, 1 Brown's Ch. 247; Brandon v. Robinson, 18 Yes. Jr.
429; Piercy v. Roberts, 1 M. & K. 4; Dick v. Pitchford, 1
Dev. & Bat. Eq. 484; 2 Story's Eq. sec. 974 a.
Steib v. Whitehead. 249
Opinion of the Court.
The limitation that the trustee is not to pay upon orders
or assignment, is void, and the income is subject to the pay-
ment of the debts of the cestui que trust. Smith v. Moore, 36
Ala. 327 ; Mebane v. Mebane, 4 Ired. Eq. 131 ; Gray v. Obear,
54 Ga. 231 ; Mcllvain v. Smith, 42 Mo. 45.
The rule is, that where the debtor is entitled to the sole
enjoyment of the income or profits of a fund during his life-
time, such income is subject to the payment of his debts.
Dick v. Pitchford, 1 Dev. & Bat. Eq. 480 ; Presley v. Rodgers,
24 Miss. 520; Johnson v. dishing, 15 N. H. 298; Broivn v.
Cleary, 1 Eich. Eq. 319 ; Mcllvain v. Smith, 42 Mo. 45 ; Heath
v. Bishop, 4 Eich. Eq. 46.
Unless otherwise specified in the trust, the profits or in-
come accumulating on a fund given to the beneficiary for life,
belong to her, and are not to be added to the corpus of the
fund, (Astope v. Goodall, 53 Ga. 318, Bazamore v. Davis, 55
id. 504,) and such surplus is liable for her debts. Bailie v.
McPhorter, 56 Ga. 183; Bippon v. Norton, 2 Beav. 63; Page
v. Way, 3 id. 20; Wiles v. White, 10 Eich. Eq. 294; Joor v.
Hodges, Speer's Eq. 593.
Mr. Justice Mulkey delivered the opinion of the Court :
Asahel Gridley, by his last will and testament, devised to
trustees certain valuable real estate, upon the following trusts,
namely : "To keep said lands and tenements well rented ; to
make reasonable repairs upon the same; to pay promptly all
taxes and assessments thereon ; to keep the buildings thereon
reasonably insured against damages by fire ; to pay over all
remaining rents and income in cash, into the hands of my said
daughter, Juliet, in person, and not upon any written or verbal
order, nor upon any assignment or transfer by the said Juliet.
At the death of the said Juliet said trust estate shall cease
and be determined, and the said lands shall vest in the heirs
of the body of the said Juliet, and in default of such heirs,
shall descend to the heirs of my body then living, according
250 Steib v. Whitehead.
Opinion of the Court.
to the laws of Illinois then in force regulating descents."
After the death of Gridley his will was duly probated, and no
question is made as to its form, or the capacity of the testator
to make a will. The trustees named in the will having refused
to act, by a proper proceeding in chancery William H. White-,
head, the defendant in error, was duly appointed trustee in
their stead, and thereupon took possession of the devised
premises, and otherwise assumed the duties of the trust.
Certain moneys, being ia part of the. rents and profits of the
estate, having come into his hands, as trustee, and which,
under the provisions of the will, it was his duty to pay over
to Juliet, the daughter, were attached in his hands by one of
her creditors. The trustee appeared and filed an answer, as
garnishee, setting up the trust and the special provisions of
the will above cited, and the question presented for determin-
ation is, whether the money thus held by him was subject to
garnishment.
The authorities are not in accord on this subject. Under
the rule as laid down by the courts of England, and by the
courts of final resort in a number of. the States of the Union,
the fund attached would clearly be subject, in equity, to the
payment of the daughter's debts. (Tillinghast v. Bradford,
5 E. I. 205 ; Smith v. Moore, 37 Ala. 330 ; Heath v. Bishop,
4 Kich. Eq. 46 ; Mcllvain v. Smith, 42 Mo. 45.) A contrary
rule prevails in Pennsylvania, Massachusetts, and perhaps
other States, which seems to be supported by the reasoning
of the Supreme Court of the United States in Nichols v. Eaton,
91 U. S. 716. The question, so far as we are advised, is a
new one in this court, and in view of the respectable authority
to be found on either side of it, we feel at liberty to adopt
that view which is nearest in accord with our convictions of
right and a sound public policy.
That it was the intention of the testator to place the net
income of the property beyond the control of his daughter
and her creditors while in the hands of the trustee, is mani-
Steib v. Whitehead. 251
Opinion of the Court.
fest, and we perceive no good reason, nor has any been sug-
gested, why this intention should not be given effect. We
fully recognize the general proposition that one can not make
an absolute gift or other disposition of property, particularly
an estate in fee, and yet at the same time impose such re-
strictions and limitations upon its use and enjoyment as to
defeat the object of the gift itself, for that would be, in effect,
to give and not to give, in the same breath. Nor do we at all
question the general principle that upon the absolute transfer
of an estate, the grantor can not, by any restrictions or lim-
itations contained in the instrument of transfer, defeat or
annul the legal consequences which the law annexes to the
estate thus transferred. If, for instance, upon the transfer
of an estate in fee, the conveyance should provide that the
estate thereby conveyed should not be subject to dower or to
curtesy, or that it should not descend to the heirs general of
the grantee upon his dying intestate, or that the grantee
should have no power of disposition over it, the provision, in
either of these cases, would clearly be inoperative and void,
because the act or thing forbidden is a right or incident which
the law annexes to every estate in fee simple, and to give
effect to such provisions would be simply permitting indi-
viduals to abrogate and annul the law of the State by mere
private contract. This can not be done. But while this un-
questionably is true, it does not necessarily follow that a
father may not, by will or otherwise, make such reasonable
disposition of his property, when not required to meet any
duty or obligation of his own, as will effectually secure to his
child a competent support for life, and the most appropri-
ate, if not the only, way of accomplishing such an object is
through the medium of a trust. Yet a trust, however care-
fully guarded otherwise, would in many cases fall far short
of the object of its creation, if the father, in such case, has
no power to provide against the schemes of designing per-
sons, as well as the improvidence of the child itself. If the
252 Steib v. Whitehead.
Opinion of the Court.
beneficiary may anticipate the income, or absolutely sell or
otherwise dispose of the equitable interest, it is evident the
whole object of the settlor is liable to be defeated. If, on
the other hand, the author of the trust may say, as was done
in this case, the net accumulations of the fund shall be paid
only into the hands of the beneficiary, then it is clear the
object of the trust can never be wholly defeated. Whatever
the reverses of fortune may be, the child is provided for, and is
effectually placed beyond the reach of unprincipled schemers
and sharpers.
The tendency of present legislation is to soften and amel-
iorate, as far as practicable, the hardships and privations that
follow in the wake of poverty and financial disaster. The
courts of the country, in the same liberal spirit, have almost
uniformly given full effect to such legislation. The practical
results of this tendency, we think, upon the whole, have been
beneficial, and we are not inclined to render a decision in
this case which may be regarded as a retrograde movement.
The creditors of the daughter have no ground to complain
that they have been misled or wronged in consequence of the
provision made for her by her father. It was his own bounty,
and so far as they are concerned he had the right to dispose
of it as he pleased. The property was not placed in her
possession so that she might appear as owner when she was
not, and thereby obtain credit. An examination of the public
records would have shown that she had no power to sell or
assign her equitable interest, — that the extent of her right
was to receive the net accumulations of the trust estate from
the hands of the trustee, and that these accumulations did
not become absolutely hers, so as to render them subject to
legal process for her debts, until actually paid to her.
The McLean circuit court, and the Appellate Court for the
Third District, having reached a conclusion in accord with
the views here presented, the judgment will be affirmed.
Judgment affirmed.
Graham v. The People ex rel. 253
Syllabus.
George B. Graham
v.
The People ex rel. Mary Rutledge.
Filed at Springfield October 2, 1884.
1. County judge — when his duty to certify case to circuit court. Where
a county judge is interested, as an attorney for heirs of an intestate, in resist-
ing the widow's award, he is incompetent to act as judge upon the question
of allowing the sum awarded her by the appraisers, and it is made his duty
by the statute to certify the question to the circuit court, for its action in the
premises.
2. Same — mandamus to compel him to certify question to circuit court.
Where a county judge is interested in an estate of a deceased person, he has
no discretion to exercise as to whether he will transfer the matter in dispute
to the circuit court for adjudication, and his power is limited to the simple
ministerial duty to cause the record and papers to be certified to that court
in conformity with the statute, and mandamus lies to compel him to do so if
he refuses.
3. Same — inter-change of judges — statute construed. The provision of
section 1 of the act approved May 31, 1878, for the interchange of county
judges of different counties, makes such interchange purely voluntary, and
it may be made without any reference to the fact of the interest of the judge
whose place is to be taken by the other judge. Such provision does not repeal
or modify section 69 of chapter 3, and sections 179 and 180 of chapter 37, of
the Eevised Statutes.
4. Where a county judge was interested, as an attorney, only in a single
question arising on exception to the estimate of the widow's award, it is made
his duty by the statute to certify to the circuit court only the question in
which he has such interest. In other respects the settlement of the estate
may proceed before him.
5. Costs — Supreme Court — reversal in part. Where this court affirmed
in part a judgment in a mandamus suit, and reversed the same in part, this
court directed that each party pay the costs of this court incurred by him.
Appeal from the Appellate Court for the Third District ; —
heard in that court on writ of error to the Circuit Court of
DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
254 Graham v. The People ex rel.
Brief for the Appellant.
Mr. V. Warner, for the appellant :
The respondent, before his election, was retained by all
the heirs except one, to resist the approval, by the county
court, of the inventory and report of the appraisers, includ-
ing the estimate of the widow's award. He was disqualified
from presiding at the hearing of matters wherein he was of
counsel, but no further.
Section 69 of chapter 3, and sections 179 and 180, of
chapter 37, of the Eevised Statutes, provide for certifying
to the circuit' court where the county judge is interested or
is a* material witness; but the act of May 29, 1879, author-
izes county judges to interchange and hold courts for each
other, and this obviates the necessity of certifying to the cir-
cuit court, or at least makes it discretionary with the county
judge. If he must certify when interested, no necessity could
ever arise for an interchange of county judges.
The jurisdiction of the county court, rightfully acquired,
will not be disturbed unless it is clear, in law and in fact,
that it has been lost. 5 Wait's Actions and Defences, 253,
sec. 5; Worthington v. Jeffries, L. E. 10 C. P. 377; 12 Eng.
440.
"Shall" means "may" when no right or benefit to any
one depends upon the imperative use of the word. Fowler v.
Pirkins, 77 111. 271 ; Wheeler v. Chicago, 24 id. 105.
The writ of mandamus ought not to issue in any case unless
the party applying for it shall show a clear legal right to have
the thing sought by it done, and in the manner and by the
person or body sought to be coerced, and must be effectual
as a remedy, if enforced, and it must be in the power of the
party, and his duty, also, to do the act sought to be done.
It is well settled that in a doubtful case the writ should not
be awarded. It is never awarded unless the right of the
relator is clear and undeniable, and the party sought to be
coerced is bound to act. People v. Hatch, 33 111. 140 ; People
Graham v. The People ex rel. 255
Brief for the Appellee.
v. Commissioners, 66 id. 339 ; People v. Besse, 93 id. ISO ;
People v. St. Clair County, 85 id. 396 ; People v. Railroad Co.
55 id. 96 ; Railway Co. v. County Clerk, 74 id. 27.
Messrs. Fuller & Monson, for the appellee :
As to the interest disqualifying a judge from acting, see
Cooley's Const. Lim. 514, 516.
If the judge who renders judgment in a case has previously
been attorney in the case, the judgment is a nullity. Kearns
v. Kearns, 5 Coldw. 217.
Section 69 of chapter 3, and sections 179 and 180 of chap-
ter 37, of the Revised Statutes, we think are mandatory,
leaving no discretion in the judge, and gives the circuit court
of the proper county full and complete jurisdiction in all
matters of probate pending in the county court, wherein the
judge is interested.
The act of May 29, 1S79, giving a right of interchange,
does not repeal or in any manner modify the sections above
referred to. Note the language, "perform each other's duties. "
This does not enable a judge having no jurisdiction, to confer
jurisdiction on another, and enable him to do what he could
not do himself.
When a right to a change of venue is given by statute,
the courts have no power to repeal, modify or mitigate the
requirements of such statute. Knickerbocker Ins. Co. v. Tol-
man, 80 111. 106 ; Johnson v. Von Kettler, 66 id. 63 ; Loivry
v. Coster, 91 id. 182; Weyrich v. People, 89 id. 95.
The statute allowing county judges to interchange with
each other has nothing to do with a case where the judge is
interested.
Where a duty is imposed by statute on a judge to do a
specific act, mandamus will lie. People ex rel. v. Power, 25
111. 187; People ex rel. v. Zane, 105 id. 662; People v. Wil-
liams, 91 id. 87; People v. Village of Crotty, 93 id. 180.
256 Gbaham v. The People ex rel.
Opinion of the Court.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
The relatrix, as administratrix of the estate of her deceased
husband, returned into the office of the county clerk an inven-
tory, appraisement bill, and estimate by the appraisers of the
value of the widow's award. The respondent, as attorney at
law for all but one of the heirs at law, resisted the approval of
these papers, and filed exceptions, in writing, thereto, and the
county court, at its November term, 1882, entered an order
approving the inventory and appraisement bill, but disapprov-
ing and setting aside the widow's award. At the November
election, 1882, the respondent was elected county judge, and
in due time qualified, and was commissioned as such. Sub-
sequently, and after the respondent was so qualified and com-
missioned as county judge, the relatrix filed in the office of
the county clerk an additional inventory and a second esti-
mate by the appraisers, of the value of the widow's award.
The respondent, as such attorney for the heirs at law, then
also resisted the approval of the appraisement of the widow's
award, and filed exceptions, in writing, thereto, and thereupon
the relatrix made a written request and demand upon the
respondent, that he, as county judge, enter upon the records
of the county court an order reciting that he was interested,
as an attorney, in the settlement of the estate, and that there-
fore the same should be certified to the circuit court of that
county for settlement ; but he refused to make such order,
and instead, and of his own motion, ordered that the venue
be changed, "for the hearing of exceptions to inventory and
appraisers' estimate of widow's award," to another county
judge, named to preside in that court, by the request of the
respondent. The principal question to be determined is,
whether this action of the respondent has any authority of
law to sanction it.
Graham v. The People ex rel. 257
Opinion of the Court.
It is provided by section 69, chapter 3, of the Eevised Stat-
utes of 1874, entitled "Administration of estates," that "in
all cases or matters pending in the county court, where the
judge of that court shall be interested in the same, or is a
material and necessary witness, the case shall be transmitted
to the circuit court of the proper county, and there determ-
ined, as in the county court ; and the papers, with the order
or judgment of the circuit court thereon, shall be duly certi-
fied, and filed in the county court, and have the same effect
as if determined in the county court." And sections 179 and
180, of chapter 37, of the same statute, entitled "Courts,"
are as follows :
"Sec. 179. Whenever the county judge of any county is
interested in the estate of any deceased person, and the letters
testamentary or of administration shall be grantable in the
county of such judge, such facts shall be entered upon the
records of such court, and certified to the circuit court of such
county : Provided, that in case the judge is interested only
as a creditor, no change need be made except in relation to
his claim.
"Sec. 180. Upon filing the copy of such certificate with
the clerk of the circuit court, such court shall have full and
complete jurisdiction in all matters pertaining to such estate,
and may make all orders and take all proceedings therein
which might have been made or taken in the county court if
the judge thereof had not been interested."
These sections assume, rather than declare, the incompe-
tency of the county judge to act in the contemplated states
of case. At common law, no one can be a judge in his
own cause. (Coke upon Littleton, sec. 212; Broom's Legal
Maxims, (4th ed.) 109; Cooley's Const. Lim. 410, et seq.)
The principle extends to the interest of an attorney at law
in the suit of his client, and so here is provided a way by
which, in the contingency contemplated, the case or proceed-
17—111 III.
25 S Graham v. The People ex rel.
Opinion of the Court.
ing shall be taken before a tribunal competent to adjudicate
upon it.
But counsel contend that section 1 of an act approved May
31, 1879, renders it unnecessary, in cases like the present, to
certify the papers in the estate, or relating to the question in
controversy, to the circuit court, and authorizes the precise
thing which he did. That section reads : "That the county
judges of the several counties of this State, with like privi-
leges as the judges of the circuit courts of this State, may
interchange duties when they find it necessary or convenient."
This, it will be observed, is purely voluntary, and the inter-
change may be made without any reference whatever to the
interest, or want of interest, of the judge whose place is thus
rilled by another judge, in the cases or questions to be de-
cided. Of course, if, before any necessity or opportunity for
action by the court, here, on the questions in reference to
which respondent was counsel, another judge, lawfully em-
powered to act, was present and presiding as judge, the case
contemplated in section 179, of chapter 37, and section 69,
of chapter 3, of the Ee vised Statutes of 1874, would have had
no existence, for so long as such judge should be present and
presiding in the court, he would be competent to decide the
questions in which the judge of that court was interested.
But that question is not before us. Here the judge who was
interested as attorney was present and presiding. He was
incompetent to act as judge upon the question in which he
was interested as an attorney, and, under the statute, it was
then his duty to certify the question to the circuit court. He
was not authorized to wait and see whether he could get some
other county judge to sit in his place. It is to be observed
the section last quoted does not assume to repeal or modify
the sections first quoted, and in our opinion it does not do so
by implication. They can all exist together, without any
incompatibility.
Graham v. The People ex rel. 259
Opinion of the Court.
A final objection urged by counsel for respondent is, that
mandamus does not lie in this kind of a case, and The People
ex rel. v. Mclioberts, 100 111. 45 S, is referred to in support of
the position. The cases are essentially different. There the
judge had to exercise judgment and discretion. The right to
the change depended upon the sufficiency of the petition, and
of this the judge was to determine. But here the interest of
the judge is a .matter knowledge of which exists in his own
breast, and it renders him absolutely incompetent to act, —
goes to the jurisdiction of the court. There is nothing for
him to exercise judgment upon. The fact existing, his power
is limited to the simple ministerial duty of causing the record
and papers to be certified, in conformity with the statute.
(Cooley's Const. Lim. ubi supra.) We' are, however, of opinion
that only the questions in which the respondent is interested
as counsel, should be certified. In all other respects the
settlement of the estate may proceed before him as well as
another. An estate is not a single litigation. Its settlement
may involve many distinct legal controversies, in some of
which one attorney may be interested, and in others different
attorneys, — and so far as is here perceived the interest of the
respondent goes no further than the question of the widow's
award.
The judgment below will therefore, so far as respects the
widow's award, be affirmed, but so far as respects other mat-
ters relating to the settlement of the estate it will be reversed.
The costs of each party in this court will be taxed against the
party incurring them.
Judgment reversed in part and in part affirmed.
260 Bittinger v. Kasten et al.
Syllabus.
George W. Bittinger
v.
Fredericks Kasten et al.
Filed at Ottawa September 27, 1884.
1. Fraudulent conveyance — voluntary settlement on wife, by party
not insolvent. To render a reasonable provision by a husband for bis wife,
by investing her with the title to real estate, fraudulent, as against a creditor
of the former, it must appear that he was at the time insolvent, or that such
gift made him so.
2. The owner of property may at any time give the same to any one he
chooses, so long as he thereby injures no then existing creditor, and no sub-
sequent creditor can call it in question, unless the donor is guilty of an actual
fraudulent intent, and such creditor is thereby injured. This follows from
his absolute dominion over his property; and the mere fact that he may be
indebted, is not alone sufficient to make a gift or voluntary conveyance by
him inoperative. If there is no intention on his part to delay or defraud his
creditors, the conveyance is not within the Statute of Frauds.
3. No creditor without any lien has any right to complain that his debtor
is giving away his property to his wife or children, unless such creditor can
establish the fact that the debtor has not retained enough to satisfy existing
debts. Such grantor must make himself insolvent by such gifts or convey-
ances, and to impeach them, fraud must be alleged and proved.
4. So this court has held, that where there is no fraudulent intent, and
the gift or provision made by a debtor to his wife or child is a reasonable
one under the circumstances, leaving ample property, unincumbered, for the
payment of his debts, not materially lessening his creditors' then prospect of
payment, the gift or provision will be sustained.
5. Same — presumption as to insolvency. In the absence of an allega-
tion in a creditor's bill to reach property given by a husband to his wife, that
he was insolvent at the time, or that such gift rendered him unable to meet
all his legal obligations, or even that he owed any other persons, and of proof
to sustain the same, it can not be presumed that any other debts of the hus-
band then existed.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county; the Hon. George Gardner, Judge, presiding.
Bittinger v. Kasten et al. 261
Statement of the case.
This was a creditor's bill, filed in the Superior Court of
Cook county, on October 27, 1882, by George W. Bittinger,
against Fredericka Kasten, Carl Kasten, Herman A. Haster,
G. H. Thomas and Otto Wasmansdorff, to subject certain
real estate vested in Fredericka Kasten to the payment of a
judgment in favor of the complainant, against her husband,
Carl Kasten.
In 1873 Carl Kasten acquired the title to lot 42, in Eeich's
re-subdivision of block 28, in canal trustees' subdivision of
part of section 33, township 40, north, range 14, east, and re-
mained the owner of record until July 19, 1879, when he, and
Fredericka, his wife, conveyed the same to William Zimmer-
man, for the expressed consideration of $4000. On the same
day, Zimmerman conveyed the same lot to said Fredericka
Kasten, for the expressed consideration of $4000. These two
conveyances are charged to have been fraudulent, and with-
out consideration. Afterwards, on July 14, 1881, said Fred-
ericka Kasten and her said husband sold said lot to Herman
A. Haster for $4600, and on September 9, 1881, one G. H.
Thomas conveyed to Fredericka Kasten sub-lots 3 and 4, in
G. H. Thomas' subdivision of lot 14, in block 21, in canal
trustees' subdivision of section 33, etc., she using the means
derived from the sale of lot 42 in making payment for these
sub-lots. On April 25, 1879, complainant recovered a judg-
ment against one Herman for $530.71, and costs, from which
judgment said Herman took an appeal to the Appellate Court,
and on April 26, 1879, said Herman filed his appeal bond,
with the said Carl Kasten as one of his sureties. At the
October term, 1879, of the Appellate Court, said appeal was
dismissed, whereby the liability of Carl Kasten as a surety
on said appeal bond became fixed. On August 7, 1882, the
complainant, in an action on said bond in the Superior Court
of Cook county, recovered judgment against said Carl Kasten
for $700.76, and costs of suit. An execution was issued upon
this judgment, which was returned no property found. The
262 Bittinger v. Kasten et al.
Brief for the Appellant.
bill alleges the insolvency of Carl Kasten, and charges that the
conveyances by Kasten to Zimmerman, and by the latter to
Mrs. Kasten, were without consideration, and for the fraudu-
lent purpose of preventing the complainant from collecting
his claim from Mr. Kasten on this bond, and prays that the
sub-lots be declared to belong to the husband, and subject to
the judgment.
The answers of Fredericka Kasten and Carl Kasten are
substantially alike. They admit that the title to the first lot
stood in the husband at the time he signed, the bond, and
had been in his name since 1873, and until he conveyed to
Zimmerman. There is no pretence that there was any con-
sideration for the conveyance from Carl Kasten to Zimmer-
man, or from the latter to Mrs. Kasten ; but it is claimed
that the first lot was bought, in 1873, with the means of the
wife, and that the husband had taken the title in his own
name, without her consent ; that she had repeatedly since
asked her husband to reconvey said lot to her, but that he
had neglected to do so, and that the conveyance by her hus-
band to Zimmerman, and by Zimmerman to her, was simply
to put the title in her.
The cause was heard upon the bill, answers and replica-
tion, and the deposition of the complainant, and the court
dismissed the bill, which decree was affirmed by the Appel-
late Court, and the complainant, by his further appeal, brings
the case to this court.
Mr. Joseph Pfirshing, for the appellant :
When a bill calls for an answer under oath, then the answer
is evidence only so far as it is strictly responsive to the alle-
gations of the bill. If the answer sets up new matter by way
of confession and avoidance, it is incumbent on the defend-
ant to prove it. Cummins v. Cummins, 15 111. 33; Stoufer v.
Machen, 16 id. 554; Cassell v. Ross, 33 id. 254; O'Brien v.
Fry, 82 id. 274; McDonald v. McDonald, 16 Vt. 634; Wake-
Bittinger v. Kasten et al, 263
Brief for the Appellees.
man v. Grover, 4 Paige, 33 ; Hart v. Ten Eyck, 2 Johns. Ch.
89; Clark v. White, 12 Pet. 190.
The wife, by allowing her husband to hold property in his
name for several years, thereby giving him credit, is estopped
to show he held the same in trust for her. Bigelow on
Estoppel, (1st ed.) 468; id. (2d ed.) 479, 482; McNiel v.
Tenth National Bank, 46 N. Y. 325; Wendell v. VanRenn-
selaer, 1 Johns. Ch. 344; Storrs v. Barker, 6 id. 160.
It makes no difference as to the character of the debt at
the time of the fraudulent conveyance. Bay v. Cook, 31 111.
336; Patton v. Gates, 67 id. 164; Robinson v. Brems, 90 id.
351; Power v. Alston, 93 id. 587.
Mr. B. M. Shaffner, for the appellees :
The answers are responsive to the bill, and are evidence
for the defendants. Cummins v. Cummins, 15 111. 34; Blais-
dell v. Bowen, 40 Vt. 126.
Appellant failed to establish fraud, while Mrs. Kasten has
shown she was the owner, and that her husband was but a
trustee for her. VanDo'rn v. Leeper, 95 111. 35; Seeders v.
Allen, 98 id. 468 ; Phillips v. North, 77 id. 243.
We refer to Tomlinson v. Matthews, 9S 111. 178, from which
the following propositions are deducible :
First — Under the legislation of this State the common law
disabilities of married women are completely changed, and
the common law rights of the husband, in respect to his wife's
property, have been abrogated. As respects her separate prop-
erty the husband and wife stand before the law as strangers.
Second — A husband in failing circumstances may make a
settlement upon his wife in payment of an indebtedness from
him to her, if made in good faith and for a valuable consid-
eration.
Third — The husband may prefer his wife, to the exclusion
of other creditors, provided it is done in good faith and for a
valuable consideration.
264: Bittinger v. Kasten et at.
Opinion of the Court.
Mr. Justice Dickey delivered the opinion of the Court :
It is contended by the appellant that the allegations in
the answers of the two Kastens, that Carl Kasten, the hus-
band, bought the original lot held by him with the money of
Fredericka, his wife, and took the legal title in his name
without her knowledge or consent, whereby he held the same
in trust for her, are not responsive to the bill, which required
sworn answers, and hence did not amount to evidence, but
had to be proved, in order to show her equities, if any, and
that without proof of such allegations the arrangement by
which the legal title was transferred from the husband to
the wife constituted a gift or voluntary settlement upon the
wife, without any consideration to uphold the same as against
creditors of the husband.
In the view we have taken of the case it is not necessary
to decide whether the several averments in the answers are
responsive to the bill or not, as, whether that be so or not,
the decree dismissing the bill must be affirmed upon another
ground. There is neither allegation nor proof of the insolv-
ency of Kasten at the time of his conveyance to his wife. It
is neither alleged nor proved that at that time he owed any
debts whatever, or had any liability other than that upon
the appeal bond in question. Nor is it alleged or proved
that at that time he did not have property other than that
conveyed to his wife, sufficient to meet the liability upon this
appeal bond. In such case the conveyance, though volun-
tary, must be held valid. A voluntary settlement, otherwise
good, will not be rendered invalid by an unsuccessful attempt
to prove a valuable consideration. Lucas v. Lucas, 103 111.
121.
The owner of property may at any time give the same to
any one he chooses, so long as he thereby injures no then
existing creditor, and no subsequent creditor can call it in
question, unless the donor is guilty of an actual fraudulent
Bittingeb v. Kasten et al. 265
Opinion of the Court.
intent, and such creditor is thereby injured. This follows
from his absolute dominion over his property, and the mere
fact that he may be indebted is not alone sufficient to make a
gift or voluntary conveyance by him inoperative. If there is
no intention on his part to delay or defraud his creditors, the
conveyance is not within the statute. Bump on Fraudulent
Conveyances, (3d ed.) page 269, says : "It is not convey-
ances where a man owes that are prohibited, but conveyances
with the intent or purpose to delay, hinder or defraud cred-
itors, " — citing Lyne v. Bank of Kentucky, 5 J. J. Marsh. 545,
Clayton v. Brown, IT Ga. 217, Taylor v. Eubanks, 3 A. K.
Marsh. 239, and Hunter v. Waite, 3 Gratt. 26. On page 275
the same author says: "The presumption of an intent to
delay, hinder and defraud creditors, arising from a voluntary
conveyance by a person who is in debt, is not conclusive, for
such a conveyance is fraudulent only where it necessarily
delays, hinders or defrauds them. * * * Indebtedness,
therefore, is only one circumstance from which an inference
of an intent to defraud may be drawn, and must be consid-
ered in connection with the donor's estate." Again, on page
275, he says : "It is accordingly settled that mere indebted-
ness alone is not sufficient to render a voluntary conveyance
void, if the donor has ample means left to pay his debts."
To the same effect may be found various decisions of this
court. In Moritz v. Hoffman et al. 35 111. 553, the court say :
"No creditor without a lien has any right to complain that
his debtor is giving away property to his wife or children,
unless such creditor can establish the fact that he has not
retained enough to satisfy existing debts. Such grantor must
make himself insolvent by such gifts or conveyances, and to
impeach them, fraud must be charged and proved, " — citing
Wyck v. Seivard et al. 6 Paige, 62. In Emerson v. Bemis, 69
111. 537, the court say : "When there is no actual fraudulent
intent, and the gift or provision made by a debtor to his
wife or child is a reasonable one under the circumstances,
266 Bittingee v. Kasten et al.
Opinion of the Court.
leaving ample property unincumbered for the payment of the
party's debts, not materially lessening their then prospect of
payment, the gift or provision will be sustained as valid."
See, also, Fanning et al. v. Russell et al. 94 111. 386 ; Patrick
v. Patrick, 77 id. 555; Sweeney et ux. v. Damron et al. 47 id.
450; JSIathetvs et al. v. Jordan et al. 88 id. 602; Lincoln v.
McLaughlin, 74 id. 11.
In this case the bill alleges the liability of Carl Kasten
to complainant, as surety on an appeal bond, at the time
of making the provision in favor of his wife, but does not
charge that he was insolvent, or that such provision or gift
rendered him insolvent or unable to meet all his legal obli-
gations, or even that he owed any other persons. In the
absence of an allegation to that effect, sustained by proof, it
can not be presumed that any other debts of Carl Kasten
then existed. (Tunison v. Chamblin et al. 88 111. 386.) As
was said in the case of Fanning et al. v. Russell et al. supra:
"Here, there is an entire want of evidence on the part of
complainants to establish the fact that (Kasten) was insolv-
ent when he executed the deed." For aught that is shown
in the record, Kasten may have retained at the time ample
means to have met this only liability shown. His conveyance
was made July 19, 1879, and the complainant did not recover
judgment on the appeal bond until on August 7, 1882, and
the execution was not returned until October 5, 1882. He
may have been perfectly solvent in July, 1879, and when he
in fact became insolvent does not appear.
Perceiving no error, the judgment of the Appellate Court
will be affirmed.
Judgment affirmed.
Litsey v. Whittemore. 267
Syllabus.
Edwin Litsey
v.
Floyd K. Whittemore.
Filed at Springfield September 27, 1884.
1. Specific performance — laches. Where the purchaser of land was
to pay $600 in cash when the deed and abstract were ready, and assume an
existing mortgage of $3000 on the premises, the vendor and wife to make
him a good and sufficient warranty deed, no time of performance being fixed,
and the purchaser, within four months from the date of the contract, ten-
dered the vendor $600, and presented him a deed to be executed, in which
the purchaser assumed to pay the mortgage debt, and, on the refusal of the
vendor to perform the contract on his part, immediately thereafter filed his
bill for specific performance, it was held, that the delay was not unreason-
able, under the circumstances. Until the deed and abstract were prepared
the purchaser was not bound to pay.
2. Same — want of title in vendor, and refusal of his wife to join in the
deed — whether availing as a defence. The fact that a vendor of land is
unable to give a warranty deed, so as to give a good title, and that his wife
refuses to join in a deed for the land, is no defence to a bill by the vendee
to enforce a specific performance. And when the decree requires the master
in chancery to make a conveyance to the vendee, this will amount only to a
quitclaim deed by the vendor alone, and the latter can not complain of the
decree on that account.
3. Contract— for sale of land, construed — condition precedent as to
making cash payment. A contract recited "that A has this day bargained
and sold to B, for the consideration of $600 cash when deed and abstract are
ready, and the further consideration that B assume an existing $3000 mort-
gage now on the land, and hereby agrees to execute and deliver a good and
sufficient warranty deed therefor, signed and acknowledged by himself and
wife, to the following land," etc.: Held, that the $600 was not to be paid
presently, but only when the deed and abstract were ready, and that B was
not required to pay the mortgage immediately, or when he received his deed.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — heard in that court on writ of error to the Circuit
Court of Vermilion county ; the Hon. J. W. Wilkin, Judge,
presiding.
268 Litsey v. Whtttemore.
Brief for the Plaintiff in Error.
Mr. Charles Wheaton, for the plaintiff in error :
A decree will be reversed when the bill is insufficient to
support the findings. Waugh v. Robbins, 33 111. 181.
Where a bill is bad on demurrer, the court will not grant
relief upon the hearing, even though the defendant answers.
Ryan v. Duncan, 8S 111. 144.
A party can not compel a specific performance unless he
has fully performed on his part, or can give a good excuse
for not performing. Scott v. Shephard, 3 Gilm. 483 ; Heck-
ard v. Sayre, 34 111. 142; Stow v. Russell, 36 id. 18; Super-
visors v. Henneberry, 46 id. 180; Warren v. Richmond, 53
id. 52.
No time of payment being expressed, the law makes the
money payable immediately. Thompson v. Ketchum, 8 Johns.
190; Mason v. Owens, 56 111. 259.
Delay in paying or offering to perform in proper time is
fatal to the relief. Roby v. Cossitt, 78 111. 63S ; Mix v. Bal-
duc, id. 215 ; Marshall v. Perry, 90 id. 299 ; H ungate v. Ran-
kin, 20 id. 639 ; Rowland v. Sickles, 26 id. 493 ; Lyon v.
Culbertson, 83 id. 33 ; Knickerbocker Ins. Co. v. Seeleman, id.
446; Hoytv. Tuxbury, 70 id. 331.
The assumption of the mortgage means its payment, so as
to relieve the mortgagor from any liability thereon, and that
has not been done. 1 Jones on Mortgages, sec. 769.
When the vendor is kept subject to a debt from which
the vendee agreed to relieve hirn, it is a continuing injury.
Brewery. Worthington, 10 Allen, 329; Gaffney v. Hicks, 124
Mass. 301 ; Gregory v. Hartley, 6 Neb. 356 ; Wilson v. Still-
well, 9 Ohio St. 467; Stout v. Folger, 34 Iowa, 71.
If the vendor has not a good title, a decree for complete
performance can not be made ; and if both parties knew of
the state of the title, no decree for specific performance can
be had. Mills v. Van Voorhies, 20 N. Y. 412.
Litsey v. Whittemore. 269
Brief for the Defendant in Error. Opinion of the Court.
Messrs. Mann, Calhoun & Frazier, for the defendant in
error :
The default admits that defendant made the contract, and
that the complainant has always been ready and willing to
comply on his part, and that defendant has refused. Laird
v. Allen, 82 111. 44.
The cash payment was to be made only when the deed and
abstract were ready.
The assumption of a debt is an agreement to pay it at
some future but reasonable time. Under the clause in the
deed, the defendant can compel complainant to pay the as-
sumed debt. Dean v. Walker, 107 111. 540.
Complainant was not bound to pay the mortgage before it
was due. He had a right to, and did, waive the giving of
an abstract of title, and also the procurement of the signa-
ture of the defendant's wife, and also the right to a warranty
deed. Of this the defendant can have no just cause of
complaint.
Mr. Justice Mulkey delivered the opinion of the Court :
Floyd K. Whittemore, the defendant in error, on the 5th
day of May, 1883, filed in the Vermilion circuit court a bill
in chancery, against the plaintiff in error, Edwin Litsey, to
enforce the specific performance of the following contract :
"This memorandum of agreement, made this 17th day of
January, 1883, between Edwin Litsey, of Kendall county,
Illinois, first party, and F. K. Whittemore, of Sangamon
county, Illinois, second party, witnesseth, that the said first
party has this day bargained and sold to the second party,
for the consideration of $600 cash, when deed and abstract
are ready, and the further consideration that the second
party assume an existing $3000 mortgage now on the land,
and hereby agrees to execute and deliver a good and sufficient
270 Litsey v. Whittemoee.
Opinion of the Court.
warranty deed therefor, signed and acknowledged by himself
and wife, to the following described lands, to-wit : the south-
east quarter of section 12, township 23, range 13, west, situ-
ated in Vermilion county, Illinois.
(Signed) Edwin Litsey>
F. K. Whtttemore."
The bill, after setting out the contract, avers that the com-
plainant has always been ready and willing to comply with
its terms, on his part; "that complainant, on May 4, 1883,
tendered to Edwin Litsey the said sum of $600, and also
presented him a deed, to be executed by him, in which, as
a part of the consideration of said premises, complainant
assumed and agreed to pay the $3000 mortgage mentioned
in said agreement, and complainant then demanded that said
Litsey and his wife should execute said deed, and the said
Litsey then and there refused to execute said deed." The
answer admits the making of the agreement, but alleges
that it was made without consideration, "and without a full
knowledge of the facts and circumstances which resulted in
defendant's signing such agreement ; that at the time stated,
Whittemore claimed to be the owner of the north eighty acres
of the land in the said south-east quarter of section 12, with
a title superior and paramount to that of the defendant,
and defendant was induced, by continued importunity and
solicitation of complainant, * * * to enter into and sign
the so-called agreement ; that before signing said so-called
agreement, defendant repeatedly asked complainant, if he
(defendant) should consent to convey to complainant the land
described in complainant's bill, by warranty deed, whether
by doing so he (defendant) would be conveying away his right
of action against his immediate predecessor in interest, upon
his covenants of warranty in his deed to defendant, and at
each time complainant positively assured defendant he would
not ; * * * that relying upon such statements of com-
Litsey v. Whittemore. 271
Opinion of the Court.
plainant, and not otherwise, defendant signed said pretended
agreement." The answer then charges, in substance, that
in a few days after signing the agreement, upon consultation
with an attorney, he learned that a conveyance of the land
by him to complainant would operate as an extinguishment of
his right of action against his grantor, and that he thereupon
notified complainant he considered the agreement rescinded
and annulled. It is further stated in the answer, that at the
time of making the agreement, defendant was and still is
unable, in truth and in fact, to make a warranty deed of the
land described in the bill, and that complainant well knew
and still knows that fact ; that defendant is unable to obtain
the signature and acknowledgment of his wife to any convey-
ance of the land, etc.
The court sustained exceptions to the answer, and the
defendant declining to answer further, a decree pro confesso
was entered against him, in conformity with the prayer of
the bill, to reverse which the defendant has brought this writ
of error.
We agree with counsel for plaintiff in error, that if the
case made by the bill does not, as matter of law, entitle the
complainant to relief, a decree directing a specific perform-
ance of the contract would be erroneous, although the matters
set up in the answer might clearly present no defence to a
bill confessedly good on its face ; but we do not agree with
counsel that the bill in this case is so totally defective that
it would be held bad on demurrer. Its sufficiency is chiefly
assailed on the ground the complainant was guilty of laches
in not filing it at an earlier day. We do not think a delay of
some four months in bringing suit, under the circumstances
shown by the bill, warrants the charge of laches or unreason-
able delay on the part of complainant. By reference to the
contract it will be observed the $600 was not to be paid
presently, as is assumed by counsel for plaintiff in error.
On the contrary, his undertaking was to pay when the deed
272 Litsey v. Whittemore.
Opinion of the Court.
and abstract were ready. It was clearly the duty of Litsey,
under the contract, to prepare and execute the deed, and to
also furnish the complainant an abstract of title, and until
this was done the latter was under no obligation to pay the
money, and as this was not done at all by Litsey, it follows
defendant in error can not properly be said to have been
guilty of laches. This view of the matter, of course, is based
exclusively upon what appears on the face of the bill, and is
intended merely as an answer to the claim the bill is bad on
its face. As to the answer, we are of opinion.it presents no
substantial defence to the bill.
The contention of plaintiff in error that the defendant in
error should have paid, or offered to pay, the incumbrance
of $3000 on the land, as well as the $600, in order to entitle
him to a conveyance, we do not think is a fair construction
of the agreement. Had such been the intention of the par-
ties, the agreement would doubtless have so provided ; but
this it does not do. The words of the instrument are, "and
the further consideration that the second party assume an
existing $3000 mortgage now on the land." An agreement
to assume a debt does not, either in law or in a popular
sense, imply an undertaking to make immediate payment
of the debt, but rather the contrary. If this debt was to
be paid immediately, or upon the making of the deed and
furnishing the abstract, it is but reasonable to suppose the
agreement would have so stated, just as it does respecting
the $600 ; but this was not done.
As to the objection plaintiff in error was not, at the time
of making the contract, and has not since been, able to make
a warranty deed to the premises, as well as to the further
objection that his wife refuses to join in the deed, they are
both fully obviated (conceding there was anything originally
in them, of which we express no opinion,) by the decree ren-
dered in the cause, which simply directs the master to convey
the property in question to the defendant in error upon his
C. & A. E. R. Co. v. Goodwin et al. 273
Syllabus.
complying with the terms of the agreement on his part, the
effect of which will, of course, be nothing more than a mere
quitclaim deed by Litsey alone, and if Whittemore is willing
to accept such a conveyance, surely Litsey has no right to
complain.
There is no pretence or claim there has been any fraud
practiced on plaintiff in error, and he should, in equity and
good conscience, be held to the performance of his agreement.
The decree will be affirmed.
Decree affirmed.
The Chicago and Alton Railroad Company
v.
Hiram Goodwin et al.
Filed at Ottawa September 27, 1884.
1. Life estate — power of tenant for life over estate. A person having
an estate for life in land may make or allow any use of it he sees fit during
his life, provided no injury is done to the inheritance. The remainder-man,
during the existence of the life estate, has the right only to prevent the com-
mission of waste.
2. Trespass — entry under license of tenant for life. The entry upon
premises by a railway company, and the construction of a railroad over the
same, which is no injury to the inheritance, under the verbal license of the
tenant for life, is not a trespass or an unlawful entry. Such entry will not
subject the party so entering to either an action of trespass or ejectment on
the part of the remainder-man.
3. Eeal and personal estate— buildings and structures — when real
and when personal estate. It does not necessarily follow that structures,
or even buildings, placed by one person on the land of another, become a
part of the real estate. When they are trade fixtures they are regarded as
personal property. So a house erected upon the land of another, under an
agreement that it shall belong to the builder, is personal property.
4. If, however, a person enters upon the land of another without permis-
sion, and places a building or other structure thereon permanently attached
to the soil, he will be a trespasser, and the building or structure will become
18—111 III.
274 C. & A. E. K. Co. v. Goodwin et al.
Statement of the case.
a part and parcel of the land, and will be the property of the land owner. In
such case the builder acquires no right by his tortious act.
5. Eminent domain — measure of damages — compensation for struc-
tures put on land by railroad company itself. Where a railway company,
under license of the life tenant, enters upon land and constructs its road
over the same, with costly embankments, and enjoys the use of the same
without objection, on an application by the company, after the termination
of the life estate, to condemn a strip of land on which such road and struc-
tures are built, for a right of way, the law will not require it to pay the owner
of the land for the structures so placed upon the same at its own expense.
The land owner will have no right to compensation for such structures, they
not being his property.
6. A railway company seeking a condemnation of land for a right of way
already occupied by it, is not required by law to pay the land owner for struc-
tures placed upon the land at its own expense, with a view of subsequently
acquiring the right of way, even though its original entry may have been
without license, or tortious.
7. So in a proceeding by a railroad company to condemn a strip of land
for right of way then and previously occupied by it, and upon which strip
of land the company had before constructed its road, consisting of costly
embankments and structures, the court instructed the jury that in estimating
the compensation of the owner of the land they should consider the whole
property, including all the structures upon it, as well as the soil to which
they were affixed, and award such sum as compensation to the defendants as
said property was reasonably worth for the purpose for which it was intended,
although of no practical value to the defendants in connection with their
farm: Held, that the instruction was erroneous, as requiring more than a
just compensation.
Appeal from the County Court of Will county; the Hon.
C. B. Gabnsey, Judge, presiding.
This was a proceeding instituted by the Chicago and Alton
Eailroad Company, October 12, 1882, in the county court of
"Will county, against Hiram Goodwin, William Goodwin, and
Sarah Althouse, guardian of Philip Goodwin, to condemn a
strip of land for a right of way. In December, 1882, the
defendants filed their cross-petition, in which they allege that
they are the owners in fee of a farm of one hundred and
sixty-three acres, therein described, as tenants in common ;
that such farm consists of valuable land ; that the nearest
C. & A. E. E. Co. v. Goodwin et al. 275
Statement of the case.
market town is the city of Wilmington ; that the only means
of reaching the highway leading to Wilmington is to pass
from this farm, along the tow-path of the Kankakee feeder, to
a bridge across the lock at the head of the feeder ; that they
and their predecessors in ownership have always been per-
mitted by the canal authorities to use the tow-path of such
feeder as a roadway from their said farm to the highway ;
that some time in the year 1873 the Chicago and Illinois
Eiver Eailroad Company, without any right, built a railroad
track over that part of said farm described in the petition ;
that at first this track was raised upon trestle-work connect-
ing the bridge over the feeder with the bridge over the river,
and that afterwards this trestle-work was replaced with a solid
embankment, with no openings admitting of communication
between the two parts of the farm. In addition to the com-
pensation for the land actuallv taken, they claimed damages,
first, for the injury sustained by the cutting off from the body
of the farm the small piece of land lying east of the railroad ;
and second, for the injury to said farm by destroying its cus-
tomary and only means of access to the public highway.
On January 18, 18S3, appellant filed its amended petition,
and afterwards, on December 26, 1883, by leave of court,
filed an amendment to its amended petition, alleging that
prior to the commencement of this suit, and some time in
the spring of 1873, the Chicago and Illinois Eiver Eailroad
Company, a corporation created and existing under the laws
of this State, and authorized and empowered to exercise the
power of eminent domain, by and with the consent of the
party then in possession of said real estate and authorized to
grant such consent and license, entered upon said real estate,
and constructed thereon, under such consent and license, a
railroad track, and that appellant entered into the possession
and occupancy of said real estate and railroad track situate
thereon, under the Chicago and Illinois Eiver Eailroad Com-
pany, and under and through said last named corporation
276 C. & A. E. R. Co. v. Goodwin et at.
Statement of the case. ■
became the owner of said railroad track, and has ever since
said time maintained, and now maintains, the same, as owner
thereof, and in so doing constructed the embankment now
situate thereon, without objection from any person, and now
is the owner thereof, and without any objection has ever since
maintained said track.
It was admitted, on the trial, that in 1863 the mother of
appellees acquired the title to the land in question ; that she
died in 1869, leaving William Goodwin, her husband, and the
appellees, her heirs at law ; that William Goodwin, as tenant
by the curtesy, entered into the possession and use of said
land, and was so in the use and possession thereof during the
year 1873. It was also shown that some time in the fall of
1872 or spring of 1873, the Chicago and Illinois Eiver Rail-
road Company obtained from said William Goodwin a verbal
license to enter upon the land described in the petition, and
construct its road across the same, provided said company left
an opening under the track sufficient for a roadway. Acting
under this license, that corporation entered upon the land,
and built its road across the same, leaving the roadway under
the track. In 1875, appellant, as lessee, entered into the
possession, use and operation of the road constructed by the
lessor corporation, and in 1879 appellant became, by pur-
chase, the owner of said railroad, and in the year 1882 con-
structed the embankment in lieu of the trestle-work. It also
appeared that appellees never made any objection, at any
time, to any acts done by appellant or the company under
which it claims.
The petitioner asked the court to give the following among
other instructions, which the court refused :
"4. The jury are instructed that if they shall believe, from
the evidence, that the Chicago and Illinois River Railroad
Company, under a parol license from William Goodwin, for
the purpose of constructing a railroad track, entered upon
C. & A. E. E. Co. v. Goodwin et al. 277
Statement of the case.
the land in the petition described, and under such license
constructed a railroad track and operated the same ; and if
the jury shall further believe, from the evidence, that the
petitioner entered upon said land under the said Chicago and
Illinois Eiver Eailroad Company, and was in such possession
at the time of the filing of the petition herein, and since and
now continues in such possession, and since its entry into
possession, as aforesaid, has maintained said railroad track
at its own cost and charge, then the defendants in this suit
are not entitled to recover, as damages to be awarded in this
proceeding, the value of the said railroad track, embankment
and abutment."
The court also, at the request of the defendants, gave the
jury the following among other instructions :
"2. If, from the evidence, the jury find that the Chicago
and Alton Eailroad Company, or the Chicago and Illinois
Eiver Eailroad Company, or any other railroad company
under which the petitioner claims, did, without license or
permission from the defendants, or from any one having legal
power and authority to give such license or permission, enter
upon the strip of land described in the petition in this case,
and construct a railroad thereon, then such act was a mere
trespass, and such structures were placed upon said land
without right, and being in their nature fixed, permanent and
irremovable, they were affixed to and became a part of the
realty, and belong to said defendants, and compose and con-
stitute a part of the property sought to be condemned, and
for this improvement, as well as the land, just compensation
is to be awarded by the jury in this case.
"3. In estimating the compensation to be given for the
strip of land sought to be condemned to the use of the Chicago
and Alton railroad, the jury will consider the whole property
as described in the preceding instruction No. 2, including all
the structures upon it, as well as the soil to which they are
278 C. & A. E. B. Co. v. Goodwin et al.
Statement of the case.
affixed, and will award such sum as compensation to the
defendants as said property is reasonably worth for the pur-
pose for which it was intended, although of no practical value
to the defendants in connection with their farm.
"4. It being stipulated and agreed by and between the
parties in this case, that William Goodwin has no other inter-
est in the land in question except as tenant by the curtesy,
and the petitioner claiming no other license or permit from
said Goodwin, the jury are instructed that said Goodwin, as
such tenant by the curtesy, had no right, power or authority
to grant such license, and neither the Chicago and Illinois
Eiver Eailroad Company, nor the petitioner, as its grantee,
acquired, by virtue of a license from him, if any such license
in fact was given, any right to construct said railroad over
the land of the defendants.
"5. If, from the evidence, the jury believe that the Chi-
cago and Illinois Eiver Eailroad Company, from which the
petitioning corporation claims title to the improvements upon
the land sought to be condemned, never obtained a license to
place such improvements upon the land from any one author-
ized to grant such license, then in the building of such rail-
road said Chicago and Illinois Eiver Eailroad Company was
a trespasser, and all structures of a permanent nature con-
structed by it became a part of the realty, and the property
of the defendants, and in this proceeding they are entitled to
receive just compensation for the whole property, — both the
soil and the improvements.
"6. If by reason of the fact that the Chicago and Illinois
Eiver Eailroad Company obtained no license, valid in law, to
build the piece of railroad in question, the entering upon the
premises was a trespass, and the improvements became a
part of the realty and the property of defendants by opera-
tion of law, then in the present proceeding the measure of
compensation will be the same as if such improvements had
been constructed by themselves, and at their own cost. "
C. & A. E. E. Co. v. Goodwin et al. 279
Brief for the Appellant.
To the ruling of the court in refusing the said instruction
asked by the petitioner, and in giving each of those given for
the defendants, the petitioner at the time excepted.
Mr. Edwakd C. Akin, for the appellant :
The true measure of damages is the value of the land actu-
ally taken, exclusive of the improvements placed thereon by
appellant, or those under whom it claims.
The appellant is not liable in this proceeding to pay for
structures and improvements made on the right of way, never
intended to be incorporated with the soil, except for purposes
of attending the possession, and with a view of subsequently
acquiring the right of way. Greve v. Railroad Co. 26 Minn.
66 ; Railroad Co. v. Dunlap, 47 Mich. 456 ; Lyon v. Railroad
Co. 42 Wis. 538 ; Justice v. Railroad Co. 87 Pa. St. 28 ; Rail-
road Co. v. Armstrong, 46 Cal. 85 ; Austin v. Railroad Co. 45
Vt. 142 ; Mills on Eminent Domain, sec. 142.
If appellees are permitted to recover the value of their
improvements, it must be upon the theory that the original
entry was a trespass. This would be to allow them to recover
for a trespass, which can not be done in this proceeding.
(Railroad Co. v. Winslow, 66, 111. 219.) That they can not
recover for such improvements, see Baker v. RaiWoad Co. 57
Mo. 65 ; Dietrich v. Murdoch, 42 id. 79 ; Blesch v. Railroad
Co. 43 Wis. 195; Railroad Co. v. Devaney, 42 Miss. 602;
Robbins v. Railroad Co. 6 Wis. 636 ; Railroad Co. v. McComb,
60 Maine, 290; Railroad Co. v. Camp, 45 Ga. 180; Harvey
v. Railroad Co. 47 Pa. St. 428 ; Railroad Co. v. Hottenstine,
id. 28 ; Railroad Co. v. McClure, 29 Ind. 536 ; Railroad Co.
v. Munnamakcr, 4 Eich. L. 107; Railroad Co. v. Dayton, 10
Abb. Pr. (N. S.) 182; State v. Railway Co. 3 Eob. (La.) 513;
McAidey v. Railroad Co. 33 Vt. 311.
The true measure of damages is the market or cash value
of the property. Railroad Co. v. Walsh, 106 111. 253.
2S0 C. & A. E. E. Co. v. Goodwin et al.
Brief for the Appellees. Opinion of the Court.
It is the loss to the owner for which compensation must
be made. Railroad Co. v. Railroad Co. 105 111. 120.
Trade fixtures are personal property, and may be removed.
Elives v. Mauue, 3 East, 38 ; Van Ness v. Pacard, 2 Pet. 37 ;
Holmes v. Tremper, 21 Johns. 29 ; White's appeal, 10 Barr,
252.
The same doctrine applies to railroads built in the interest
of the public and trade or commerce.
Mr. G. D. A. Parks, for the appellees :
The appellees were legally entitled to compensation for the
real estate proposed to be condemned, which is not only the
soil, but also the improvements affixed to the soil. Improve-
ments placed upon land by a trespasser belong to the owner
of the fee. Dooley v. Crist, 25 111. 551 ; Mather v. Bobsehuetz,
72 id. 441 ; First Parish v. Jones, 8 Cush. 184.
The Chicago and Illinois Eiver Eailroad Company entered
upon the premises without license from any one authorized
to give it, and was a trespasser.
That the measure of damages adopted by the court below
was correct, see South Park Commissioners v. Dunlevy, 91 111.
57; Railway Co. v. Railroad Co. 100 id. 33; Railroad Co. v.
Kirhy, 104 id. 345; Stinson v. Railroad Co. 2 Minn. 114.
Mr. Justice Dickey delivered the opinion of the Court :
We think that the instructions given do not properly state
the law applicable to the facts of this case. William Good-
win, as tenant for life of this land, might make or allow any
use of it he saw fit,- during his life, provided no injury was
done to the inheritance. Appellees, as remainder-men, dur-
ing the existence of the life estate had the right only to pre-
vent the commission of waste. The evidence showing that
the railroad track, as originally constructed, did no injury to
the premises, appellees had no lawful power to prevent the
construction of the road under the license of the tenant for
C. & A. E. K. Co. v. Goodwin et al. 281
Opinion of the Court.
life. The original entry, as to them, could not have been a
trespass, for the reason they then had not even a right to
possession. As has been said : "An original entry by the
consent of the tenant for life, is lawful, and will not subject
the party entering, to an action of ejectment on the part of
the remainder-man, although damages have not been paid.
Other remedies must be sought." Mills on Eminent Domain,
sec. 142; Austin v. Rutland R. R. Co. 45 Vt. 142.
By instruction No. 2, the jury are told that if the entry
upon the land was made without anyjicense from the defend-
ants, or from one having legal power and authority to give
such license or permission, such entry, etc., was a trespass,
and that the structures placed upon the land became a part
of the realty, and inseparable from it. By instruction No. 4,
the jury were told that the life tenant had no power or author-
ity to give such license. These instructions should not have
been given in a case like the present. It does not necessarily
and invariably follow that structures, or even buildings, placed
by one person on the land of another become a part of the
real estate. When they are trade fixtures, they are regarded
as personal property. So a house erected upon the land
of another, under an agreement that it shall belong to the
builder, is personal property. (Matzon v. Griffin, 78 111. 477 ;
Curtiss v. Hoyt, 19 Conn. 165 ; Wells v. Bannister, 4 Mass.
514; 2 Am. Leading Cases, 747.) If a man erects a house
upon the land of another with his consent, it will, if the
builder has no title to the land, be the personal property
of the builder. 1 Washburn on Beal Prop. p. 2, sec. 4;
Aldrlch v. Patsons, 6 N. H. 555 ; Dame v. Dame, 38 id. 439 ;
Osgood v. Howard, 6 Greenlf. 452 ; Ashmun v. Williams, 8
Pick. 462; Doty v. Gorham, 5 id. 487; Rogers v. Woodbury,
15 id. 156 ; Mott v. Palmer, 1 Conn. 571 ; Hinckley v. Baxter,
13 Allen, 139. And it will so remain, though the land owner
convey the land, and the owner of the building convey that,
if to different persons. Ham v. Kendall, 111 Mass. 298.
282 C. & A. K. R. Co. v. Goodwin et al.
Opinion of the Court.
If a person enters the land of another without permission,
and places a building or other structure thereon, permanently
attached to the soil, he will be a trespasser, and the building
or structure will become part and parcel of the land, and will
be the property of the land owner. In such case, the builder
acquires no rights by his tortious acts. But here there was
no trespass, because the entry upon the land was with the
express consent of one having the right to give it, and all
the subsequent acts were done without objection; and before
any steps were taken to dispossess the plaintiff or the cor-
poration which it succeeded. Even if the entry had been
without license or permission of any one authorized to grant
the same, so that it was a trespass at the time, the law would
not require the railroad company, in seeking a condemnation
of the land so entered upon for a right of way, to pay the
owner of the land for structures placed upon it at its own
expense, with a view of subsequently acquiring the right of
way. As sustaining these views, see Greve v. First Division
St. Paul and Pacific R. R. Co. 26 Minn. 66 ; Morgan's Appeal,
39 Mich. 675 ; Toledo, Ann Arbor and Grand Trunk R. R. Co.
v. Dttnlap et al. 47 id. 456 ; Lyon et ux. v. Green Bay Ry. Co.
42 Wis. 538 ; Justice v. Nesquehoning Valley R. R. Co. 87
Pa. St. 28 ; California P. R. R. Co. v. Armstrong, 46 Cal. 85.
In a proceeding of this kind, to condemn land for a right
of way, the land owner can not recover damages for a prior
trespass by entering upon his premises. Lafayette, Blooming-
ton and Mississippi R. R. Co. v. Winslow, 66 111. 219.
That the land owner whose land is condemned can not
recover, in addition to the value of the land taken, the value
of improvements put upon the same by the party seeking a
condemnation, reference has been made to the following other
cases : Baker v. Chicago, Rock Island and Pacific R. R. Co.
57 Mo. 235 ; Dietrich v. Murdock, 42 id. 279; Blesch v. Chi-
cago R. R. Co. 43 Wis. 195 ; Mississippi R. R. Co. v. Devaney,
42 Miss. 602 ; Robbins v. Milwaukee R. R. Co. 60 Maine, 290 ;
C. & A. E. R, Co. v. Goodwin et al. 283
Opinion of the Court.
»
Sema R. and D. R. R. Co. v. Camp, 45 Ga. 180; Harvey v.
Lackaiuanna and B. R. R. Co. 47 Pa. St. 428 ; East Pennsyl-
vania R. R. Co. v. Hoitenstine, id. 28 ; White Water Valley R. R.
Co. v. McClure, 29 Ind. 536 ; Greenville R. R. Co. v. Mun-
namaker, 4 Kich. L. 107; McAidey v. Western Vermont R. R.
Co. 33 Yt. 311 ; State v. Gulf Ry. Co. 3 Bob. (La.) 513. The
"just compensation" required to be given, is for that which is
taken from the owner, and which is of value to him, and not
for something he never owned.
The third instruction given for the defendants is further
erroneous in directing the jury to allow the defendants, as
compensation for the structures placed upon the land, what
such property was reasonably worth for the purpose for which
it was intended, although of no practical value to defendants
in connection with their farm. The compensation which the
law requires to be made is that which is "just." This means
that the sum allowed and paid the owner*whose property is
taken, shall be equivalent to the value of that of which he
has been deprived. It would be unjust to allow him more
than will compensate his loss. It would seem, at first blush,
to be highly inequitable to allow him for a railroad track over
his land, not built by him, including embankments, at its
cost or value to a railway company owning a franchise to
use the same for railroad purposes, when to him it is of no
practical value.
For the reasons indicated, the judgment of the county
court of Will county is reversed, and the cause remanded for
further proceedings according to law.
Judgment reversed.
284 Eoyal Templaes of Temperance v. Curd.
Syllabus.
The Supreme Council of Eoyal Templars of Temperance
v.
Amanda A. Curd.
Filed at Springfield September 27, 1884.
1. Practice— when objection to evidence should be specific. Objections
to evidence, or questions propounded, which might have been obviated, must
be specifically made on the trial, or they can not be urged on appeal or error.
2. Contract — rule of construction — taking words used, in their ordi-
nary sense. In seeking the intention of the parties to a written contract,
the courts are not authorized to construe the words used otherwise than in
accordance with their plain, natural and obvious meaning, unless, from a
consideration of the entire evidence, it shall appear, that the parties did not
intend to so use them.
3. Life insurance — application as part of contract, construed. An
application by a member of a temperance order for a beneficiary certificate
in the nature of a life insurance policy, contained this clause: "I further
agree, that should I, at any time, violate my pledge of total abstinence, or be
suspended or expelled for a violation of any of the laws of the order, or for
non-payment of dues, etc., then all rights which either myself, the person
or persons named in certificate, my heirs, etc., may have upon the beneficiary
fund of the order, shall be forfeited:" Held, that the application was a part
of the contract of insurance, and obligatory upon the beneficiary named in the
certificate, to whom payment was promised on the death of the member, and
that the language was in the alternative, making either or any one of the causes
named, a ground of forfeiture of all right of recovery upon the certificate.
4. Same — certificate construed, as to conditions. A beneficiary certifi-
cate given to a member of an order, witnessed that the member was entitled
to certain rights and privileges of the order, and the same was issued upon
the express condition that he should, while a member of the order, faithfully
maintain his pledge of total abstinence, and comply with all the laws, rules,
regulations and requirements of the order, otherwise it to be of no effect; and
that in case he should die in good standing, the beneficiary named should be
entitled to one dollar from each active member in good standing, not exceed-
ing two thousand: Held, that as the requirements in the condition are used
conjunctively, a compliance with all of them was necessary to a recovery,
and that a violation of the pledge of total abstinence, alone, would bar a
recovery by the beneficiary.
5. So the words, "in case he is in good standing at the time of his decease,
then the person or persons hereinafter named shall be entitled," etc., are not
equivalent to saying that if he is not tried or convicted of violating his pledge,
Eoyal Templars of Temperance v. Curd. 285
Opinion of the Court.
etc. Good standing in a society not only implies that the party is a member
thereof, but also that he has a good reputation therein. In such case, a
violation of the pledge of total abstinence, even without a trial and convic-
tion, forfeits the right of the beneficiary to recover the sum promised.
6. Parol evidence — of breach of condition of a contract of insurance.
In an action upon a contract of a temperance order or society to pay a cer-
tain sum to the beneficiary therein named, upon the decease of the member
entering into the same, upon the express condition that he should faithfully
keep his pledge of total abstinence, it is error to exclude parol evidence of
his having violated such pledge before his death. In such case his trial and
conviction by the order for such violation need not be shown in order to
defeat a recovery.
Writ of Error to the Appellate Court for the Third Dis-
trict ; — -heard in that court on writ of error to the Circuit Court
of Coles county ; the Hon. J. W. Wilkin, Judge, presiding.
This was a suit brought by Amanda A. Curd, against the
Supreme Council of Eoyal Templars of Temperance, to re-
cover upon a certificate, in the nature of a policy of life
insurance, issued by that order to the plaintiff's husband,
and in which she was named as the beneficiary.
Mr. G. A. Kellar, for the plaintiff in error.
Mr. James A. Connolly, and Messrs. Dunn & Connolly,
for the defendant in error.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
Daniel Curd, on the 26th of November, 1881, presented to
the Supreme Council of Eoyal Templars of Temperance, the
following :
"To the Supreme Council R. T. of T.:
"I, Daniel Curd, having made application for membership
in Veritas Council No. 2, Eoyal Templars of Temperance, do
hereby agree that compliance on my part with all the laws,
regulations and requirements which are or may be hereafter
enacted by said order, is the express condition upon which
2S6 Eoyal Templars of Temperance v. Curd.
Opinion of the Court.
I am to be entitled to participate in the beneficiary fund
of the order, and have and enjoy all the other privileges of
said order. I certify that the answers made by me to the
questions propounded by the medical examiner of this coun-
cil, which are attached to this application and form a part
thereof, are true. I further agree, that should I, at any time,
violate my pledge of total abstinence, or be suspended or
expelled for a violation of any of the laws of the order, or for
non-payment of dues or beneficial assessments, or should I
die in consequence of a duel, or by the hands of justice, or
should I die by my own hand within one year from the elate of
my initiation, whether sane or insane, then all rights which
either myself, the person or persons named in certificate, my
heirs or legal representatives may have upon the beneficiary
fund of the order, shall be forfeited. And I further agree to
abide by the decision of the supreme medical examiner in
his acceptance or rejection of this application.
"Dated at Charleston, county of Coles, State of Illinois,
this 26th day of November, 1881.
(Signed.) • Daniel Curd, Applicant."
Curd was admitted to membership, as asked, and there-
upon, afterwards, on the 10th day of December, 1881, the
Supreme Council of Eoyal Templars of Temperance issued
and delivered to him the following, to-wit :
"ROYAL TEMPLARS OF TEMPERANCE.
Hope, Love and Truth. In God we trust.
BENeViCIAKY CEETIFICATE.
"This certificate, issued by the authority of the Supreme
Council Royal Templars of Temperance, witnesseth, that Bro.
Daniel Curd, a member of Veritas Council No. 2, of Illinois,
is entitled to all the rights and privileges guaranteed to active
members of the order by our constitution and laws, and issued
upon the express condition that he shall, while a member of
said order, faithfully maintain his pledge of total abstinence,
Eoyal Templars of Temperance v. Curd. 2S7
Opinion of the Court.
and comply with all the laws, rules, regulations and require-
ments of said order, — otherwise it shall be of no effect. And
in case he is in good standing at the time of his decease, then
the person or persons hereinafter named shall be entitled
to one dollar from each and every active member in good
standing, not exceeding two thousand ; or should he become
totalty disabled for life while a member of the order in good
standing, so as to prevent his following his own or any other
avocation, provided such disability did not arise from intem-
perance or any immoral conduct on his part, then, upon sat-
isfactory proof of such total disability, he shall be entitled to
one-half of the above mentioned amount, the remaining one-
half to be paid at the time of his decease ; and he now directs,
that in case of his decease it be paid to Amanda A. Curd.
"In witness whereof, we have caused this to be signed by
f Seal of 1 our supreme councilor and supreme secretary,
J Supreme > an^ the seal of this supreme council attached,
Council. this 9th day of December, 1881.
No. 12 551. Cyrus K. Porter,
V A "Ross Supreme Councilor.
Supreme Secretary.
"Countersigned and the seal of the select C Seal of )
council attached, this 10th day of December, \ Select >
i coi v Council. )
J. I. Brown, R. Sec'y. S. M. McNutt, S. C."
On the 26th of June, 1882, charges were preferred against
Curd, as follows :
"Charleston, III., June 26, 1882.
"To Veritas Council No. 2, R. T. of T.:
"I, C. U. Dunbar, a member of Veritas Council No. 2,
hereby charge Bro. Daniel Curd with violation of article 2, as
more fully appears in the annexed specifications, — by being
drunk on June 19-20 ; and I ask that a committee to inves-
tigate said charges be appointed. _ TT _
C. U. Dunbar.
2S8 Eoyal Templaks of Temperance v. Curd.
Opinion of the Court.
The consideration of this by the council was indefinitely
suspended, and on the 5th of July next following, before any
action was taken by the council on the charge, Curd died.
The circuit court, on the trial, refused to allow questions
to be answered, the effect of which would have been to prove
that Curd had drank spirituous liquors in violation of his
pledge. It is true, counsel now insist those questions were
liable to certain specific objections, — some of them, in that
they submitted a matter involving opinion as well as fact, to
the jury, and others, in that the inquiry was .not limited to
liquors drank as a beverage. The record shows the objec-
tions to the questions were only general, specifying no par-
ticular ground, and the ruling of the court, we must assume,
was on the objections as they were made. It is evident these
specific objections could have been obviated by a change in
the form of the question, and they should, therefore, to be
availed of now, have been urged when the questions were
propounded. It is quite apparent the contest on the trial
was, whether the fact that Curd had drank spirituous liquors
in violation of his pledge, as a beverage, was a complete de-
fence to the cause of action, he having never been tried and
convicted, and expelled from the order, or suspended from
its privileges therefor, and the court, both in refusing ques-
tions to be answered, and in refusing to instruct the jury,
ruled that it was not, — and this, in our opinion, is the only
question that need now be considered.
The question here, as in other cases of contract, is to arrive
at the intention of the parties, and we are not authorized, in
striving to do so, to construe words otherwise than as convey-
ing their plain, natural and obvious meaning, unless, from a
consideration of the entire evidence, it shall appear this could
not have been intended.
The first part of this contract, — the part obligatory upon
the beneficiary, — is the application of Daniel Curd. It is
plain and simple in its language, and can not be misunder-
Eoyal Templars op Temperance v. Curd. 289
Opinion of the Court.
stood. It contains this : "I further agree, that should I, at
any time, violate my pledge of total abstinence, or be sus-
pended or expelled, * * * then all rights which either
myself, the person or persons named in certificate, my heirs
or legal representatives may have upon the beneficiary fund
of the order, shall be forfeited." The language is in the
alternative, — either the one or the other of the causes speci-
fied shall forfeit all right of recovery upon the certificate.
The certificate is the second part of the contract, — the part
obligatory upon the council, — and it is thereby bound to
pay to the beneficiary one dollar from each and every active
member of the order in good standing, not exceeding two
thousand, upon the express condition that Daniel Curd shall,
while a member of said order, faithfully maintain his pledge
of total abstinence, and comply with all laws, rules, regula-
tions and requirements of said order, and that otherwise it
shall be of no effect. Stopping here, there can not be the
slightest ground for pretending that a violation of the pledge
of total abstinence does not, of itself, forfeit all right of
recovery upon the certificate. The words, "shall faithfully
maintain his pledge of total abstinence, and comply with all
the laws, rules, regulations and requirements of said order,"
are used conjunctively, and all these requirements are neces-
sary to be observed to entitle the beneficiary to recover upon
the certificate, and so it must follow the omission of either
will bar a recovery. But the certificate proceeds, after the
language quoted : "And in case he is in good standing at
the time of his decease, then the person or persons herein-
after named shall be entitled," etc., and the argument upon
behalf of defendant in error assumes that these words are
equivalent to saying that if he is not tried and convicted of
violating his pledge, etc. This assumption, we think, is not
well founded. Good standing in a society not only implies
that a party is a member of the society, but that he has a
good reputation therein. In the present instance the words
19—111 III.
290 Eoyal Templars of Temperance v. Curd.
Opinion of the Court.
are to be construed with reference to the language of the ap-
plication and the preceding language of the certificate, and
when this is done they manifestly mean not only good repu-
tation, but good conduct, — i. e., freedom from a violation of
the pledge of total abstinence, etc. Had it been designed to
make trial and conviction a condition precedent to forfeit-
ure, we must presume that it would have been so said ; but
nowhere is language used that can fairly be construed to
mean this. The pledge contains this language : "I promise
that I will not make, buy, sell, use, or give to others, as a
beverage, any spirituous, fermented or distilled liquors, wine
or cider," etc. The violation of this pledge is cause for ex-
pulsion or suspension as a member, and it — not the expul-
sion or suspension, but the violation of the pledge, — is also
a cause for forfeiture of rights and benefits under the certifi-
cate. It is true, one of the clauses of the constitution of the
order provides, that "if suspended, he forfeits all rights to
the beneficiary fund ; " but this is evidently inserted to repel
a presumption that otherwise might arise from the peculiar
language, that suspension, which is allowable instead of ex-
pulsion, as an act of grace, would condone the cause of for-
feiture in respect of the beneficiary fund.
Construing this contract as the parties made it, we think
the court below erred in excluding evidence to prove that Curd
drank liquors in violation of his pledge, notwithstanding that
he had not been tried and convicted therefor. For this error
the judgment is reversed and the cause remanded.
Judgment reversed.
Launder v. City of Chicago. 291
Syllabus.
David Launder
v.
The City of Chicago.
Filed at Ottawa September 27, 1884.
1. Licenses — granted upon conditions. Where a person takes out a
license to engage in a business be otherwise would have no right to carry on,
he takes a privilege subject to the restrictions and burdens imposed by the
ordinance under which, alone, it can issue, — and this is a recognition of the
validity of the ordinance.
2. Same — licenses to pawn-brokers — power to attach conditions. Under
the grant of power by the general law (Rev. Stat. chap. 24, sec. 62, sub. 41,)
to cities and villages, it is purely discretionary whether the authorities will
license and regulate the business of pawn-brokers, or wholly prohibit and
suppress business by them. In such case, if a city grants a license, it may
impose such conditions and burdens as it may see fit.
3. Same — ordinance relating to pawn-brokers — whether unreasonable.
An ordinance of the city of Chicago requiring every licensed pawn-broker to
make out and deliver to the superintendent of police, every day, before the
hour of twelve o'clock M., a legible and correct copy from a book to be kept
by him, of all personal property and other valuable things received on deposit
or purchased during the preceding day, together with the time (meaning the
hour) when received or purchased, and a description of the person or persons
by whom left jn pledge or from whom purchased, is not unreasonable, but is
a reasonable means to keep the pawn-broker business free from great abuse
by thieves, and for the prevention and detection of crime. Nor is such ordi-
nance tyrannical and oppressive, because no one is bound to bring himself
within its provisions.
4. Such an ordinance is not open to the objection that it makes the licensee
guilty of an offence for not making a public disclosure of his business trans-
actions. Giving the required information tQ a public officer of the law, does
not give publicity to his business. It is not to be presumed that the chief of
police will make an improper use of the information he thus receives, but the
contrary. It would be a breach of official duty for him to do so, or to make
his information public except when necessary in the detection and punish-
ment of crime.
5. Same — reasonableness of ordinance — opinions of witnesses. The
reasonableness and legality of an ordinance do not depend upon the opinions
of witnesses as to the possible and probable effect it may have upon a party's
business. Hence, in a prosecution of a pawn-broker for not giving informa-
292 Launder v. City of Chicago.
Statement of the case.
tion of his business transactions to the chief of police, as required by an
ordinance, testimony of witnesses as to the probably injurious effect such
disclosure would have on his business, is properly excluded.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Criminal Court of Cook
county ; the Hon. Sidney Smith, Judge, presiding.
This was a prosecution by the city of Chicago, against
David Launder, for a violation of section 1713 of the muni-
cipal code or ordinances of the city, originally brought before
a justice of the peace, and taken by appeal of the city to the
Criminal Court of Cook county, where a trial was had result-
ing in a judgment in favor of the city, inflicting a fine of $10
and costs. This judgment, on appeal of the defendant, was
affirmed by the Appellate Court for the First District, and the
defendant again appeals, and brings the case to this court.
On the trial, as appears from the bill of exceptions, the
plaintiff introduced in evidence section 1713 of the city ordi-
nances, upon which this action was brought, which reads as
follows :
"1713. It shall be the duty of every licensed person afore-
said, to make out and deliver to the superintendent of police,
every day, before the hour of 12 M., a legible and correct
copy from the book required in section 1708 hereof, of all
personal property and other valuable things received on de-
posit or purchased during the preceding day, together with
the time (meaning the hour) when received or purchased,
and a description of the person or persons by whom left in
pledge or from whom the same were purchased."
The plaintiff next read in evidence the section of the ordi-
nance referred to in the preceding section, which reads as
follows :
"1708. Every pawn-broker and loan-broker, or keeper of a
loan office, shall keep a book, in which shall be fairly written
in ink, at the time of each loan, an accurate account and
Launder v. City of Chicago. 293
Statement of the case.
description, in the English language, of the goods, article or
thing pawned or pledged, the amount of money loaned thereon,
the time of pledging the same, the rate of interest to be paid
on such loan, and the name and residence of the person
pawning or pledging the said goods, article or thing. No
entry made in such book shall be erased, obliterated or de-
faced."
It was admitted by the defendant that at and previous to
the time of bringing this suit he was a licensed pawn-broker,
and that he refused to make the report required by said
section 1713.
Appellant testified that he has been engaged in the pawn-
broker business for the last eighteen years, and has always
had license from the city ; that he loans money on pledges
of property, notes, bonds, secured paper, etc. ; that he has
an established business and a regular line of patrons ; that
his dealings are with reputable people only ; that he does not
do business with strangers before being satisfied of their re-
spectability ; that he carries on his business as a banker ;
that he keeps a book, as required by section 1708 of the
ordinances, in which he causes to be entered an accurate
account, as required by that section, of all loans and pledges
received by him, and that in the keeping of said book he
complies with said section 1708 ; that said book has always
been open to the inspection of the mayor or any member of
the police force, as is provided by section 1710 of the ordi-
nances, and that to make the report required would be ruinous
to his business. He then introducecl in evidence section 1710,
as follows :
"1710. The said book, as well as every article or other
thing of value pawned or pledged, shall, at all times, be open
to the inspection of the mayor or any member of the police
force."
Appellant also introduced other evidence, similar to his
own testimony, all of which was received subject to the objec-
294 Launder v. City of Chicago.
Briefs of Counsel.
tions made, and at the conclusion of the case this evidence
of the defendant was excluded by the court.
Messrs. Monroe & Leddy, for the appellant :
Among the rights secured to the citizen of this State are
immunity and protection in his house and business from the
prying eyes of government, — protection in his person, house,
papers and effects against unreasonable searches. Const.
1870, art. 2, sec. 6 ; Cooley's Const. Lim. (5th ed.) 365, 366 ;
Sullivan v. City of Oneida, 61 111. 248 ; City of Clinton v.
Phillips, 58 id. 102.
The books and papers of appellant, and their contents, are
his private property, and he is entitled to their exclusive use.
Any law or ordinance which violates this principle is void.
Cooley's Const. Lim. 367; City of Clinton v. Phillips, supra.
Property consists of certain rights in certain things secured
by law. These rights are defined to be, the right of user,
the right of exclusion, and the right of disposition. 3 Bent-
ham's works, 221 ; Rigney v. City of Chicago, 102 111. 77.
It was error to exclude evidence showing the ordinance was
unreasonable. Classon v. City of Milwaukee, 30 Wis. 316.
All ordinances must be reasonable, and not inconsistent
with the laws of the State. 2 Kyd on Corporations, 107;
Dillon on Mun. Corp. sec. 319; Kip v. City of Patterson, 2
Dutch. 298; Cooley's Const. Lim. 200, 201.
It is the noxious use, only, that can call forth the power
of police regulation. To so regulate, and only so, is the
extent and limit to which any law-making power may inter-
fere in any private business lawful in itself. Dillon on Mun.
Corp. sees. 141, 142.
Mr. M. K. M. Wallace, for the appellee :
The legislature has conferred the power to license, tax,
regulate, suppress and prohibit pawn-brokers, etc. Rev. Stat.
chap. 24, sec. 62, sub. 41.
Launder v. City of Chicago. 295
Opinion of the Court.
In such case, the city may grant license on any conditions
it sees fit. Schwuchow v. City of Chicago, 68 111. 444 ; Wig-
gins v. City of Chicago, id. 373.
Appellant having taken license under the conditions of the
ordinance, is estopped from objecting to the requirements.
Schwuchow v. City of Chicago, 68 111. 444.
The case of City of Clinton v. Phillips, 58 111. 102, is not
in point, as there the city had no power to suppress and pro-
hibit, as here. In matters pertaining to the internal peace
and well being of the State, its police powers are plenary.
When these are concerned, the only limitations imposed are
that such regulations must have reference to the common
safety, comfort and welfare of society. Anything that en-
dangers the public peace and welfare may be suppressed, and
what does this, must be left to the wisdom of the legislative
department. Dunne v. The People, 94 111. 120; Lake View
v. Rose Hill Cemetery Co. 70 id. 191.
The State has determined that the business of the pawn-
broker will endanger the public security, as it has delegated
the power to cities and villages to "license, tax, regulate,
suppress and prohibit pawn-brokers." Eev. Stat. chap. 24,
sec. 62, sub. 41.
Mr. Justice Dickey delivered the opinion of the Court :
The decision in this case depends upon the validity of
section 1713 of the revised ordinances of the city, relating
to pawn-brokers. That ordinance is claimed to be unreason-
able, unjust and oppressive, and without authority of law.
The first inquiry is, whether the legislature has conferred
the power on the city council to pass the ordinance. The
legislature has given the city council in cities, and the presi-
dent and trustees in villages, the power "to license, tax, regu-
late, suppress and prohibit hawkers, peddlers, pawn-brokers,
* * * and to revoke such license at pleasure." (Eev.
Stat. chap. 24, sec. 62, sub. 41.) Under this grant of power
296 Launder v. City of Chicago.
Opinion of the Court.
it is a matter purely discretionary with the city authorities
whether they will license and regulate the business of pawn-
brokers, or wholly prohibit and suppress business by them
within the city. In such case, if the city grants a license, it
may impose such conditions and burdens as it may see fit.
This latitude of power grows out of the fact that it is discre-
tionary to prohibit the business, or license it on such terms
as the city may choose. Schwuchow v. City of Chicago, 68
111. 444 ; Wiggins v. City of Chicago, id. 373.
The case of City of Clinton v. Phillips, 58.111. 102, is re-
ferred to as an authority to show the ordinance before us is
invalid, for want of power to enact it. The city of Clinton
had no power given it to regulate, suppress or prohibit the sale
of liquors, for certain specified purposes, by druggists. The
charter of that city, under which its ordinance was passed,
is as follows : "To restrain, prohibit and suppress tippling
houses, dram-shops, gambling houses, bawdy houses and
disorderly houses," (1 Private Laws, 1867, p. 779,) and not
druggists. If that city had conferred upon it the power to
license, tax, regulate, suppress and prohibit druggists, etc.,
then the decision referred to would have been in point here.
As it is, the ruling in that case is to be applied to cases where
only the same rights and powers are conferred, and it can
not be invoked to show that the legislature may not give the
power to pass the very ordinance there held invalid. In this
case, without a license the appellant had no right to engage
in the business of a pawn-broker within the city. He sought
for and obtained the city's license to transact such business,
and took the privilege his license conferred, subject to the re-
strictions and burdens imposed by the ordinance under which,
alone, it could issue. This was an unmistakable recognition
and admission of the validity and binding force of the ordi-
nance. By taking such license he secured immunity from
prosecution for engaging in his vocation, if he conformed to
the terms on which it was given him. The ordinance cer-
Launder v. City of Chicago. 297
Opinion of the Court.
tainly did not invade any right of property or other right,
but it conferred a right. Appellant having profited by taking
a license, with full knowledge of the conditions imposed, can
not refuse to carry out such conditions.
We do not regard the ordinance as being "unjust, unreason-
able, tyrannical and oppressive." The requirements objected
to are but reasonable means to keep the pawn-brokers' busi-
ness free from great abuse by thieves disposing of stolen goods
in their shops. They are all made in the interest of the
public, and are intended for the detection and prevention of
crime. The ordinance is not tyrannical and oppressive, as
the appellant was not bound to bring himself within its pro-
visions. Before taking out license, appellant knew he had to
keep a book containing an account and description of goods
pawned, amount of money loaned thereon, the time of pledge,
rate of interest, and the names of pledgors, and that such
book must be kept open for the inspection of the mayor and
any member of the police, and no objection seems to have
been urged to these requirements, and it appears that appel-
lant has always complied with them. If the city council had
the power to pass section 1708, no good reason is perceived
why it could not pass section 1713,
Appellant makes the point that this last section makes him
guilty of a penal offence for not making a public disclosure
of the business already done by him. We do not regard this
section as requiring a public disclosure of the appellant's busi-
ness. Giving the required information to the chief of police,
— a public officer of the law, — -does not give publicity to his
business, — at least not so much as keeping his books open
to the inspection of the mayor and any member of the police.
It is not to be presumed that the chief of police will make an
improper use of the information he receives under this sec-
tion. On the contrary, it would be a breach of official duty
for him to do so, or to make his information public except
when necessary in the detection and punishment of crime.
298 McDaid v. Call.
Syllabus.
But it is sufficient to say that we regard the ordinance in
question as but a reasonable and proper exercise of the police
power of the State, and as aimed at the detection and pre-
vention of crime. It is well known that in our great cities
thieves and the receivers of stolen property often dispose of
the fruits of their crime by sale to second-hand dealers, or
by pledge or sale to pawn-brokers, who may be perfectly
free from any intention or disposition to aid such criminals.
Such an ordinance also has a tendency to protect even such
dealers and brokers from imposition and loss. .
The evidence as to the probable effect of complying with
the ordinance, on the business of the appellant, was properly
excluded. The reasonableness and legality of an ordinance
do not depend upon the testimony of witnesses as to its pos-
sible or probable effect.
Perceiving no error in the record, the judgment of the
Appellate Court will be affirmed.
Judgment affirmed.
Henry 0. McDaid
v.
Francis M. Call.
Filed at Mt. Vernon September 27, 1884.
1. Purchases — protected against secret trust or equities of a former
owner. The owner of a leasehold estate conveyed the same to a party as
trustee, but the conveyances in every other respect were absolute deeds in
form, yet in fact they were mortgages to secure the payment of money bor-
rowed. The grantee negotiated a sale of the property, and the grantor, when
called on by the trustee and purchaser, disclaimed any interest in the prop-
erty, and agreed to make a quitclaim deed. The purchaser transferred his
purchase to another, and the trustee made him a warranty deed for the prem-
ises, and the former owner then made the trustee a quitclaim deed, and this
latter purchaser sold and conveyed the property to another, who had no notice
of any equities in favor of the original owner: Held, that the last grantee
McDaid v. Call. 299
Brief for the Appellant.
took the title unaffected by any equities the original owner might have had,
or the party of whom he borrowed the money, and for whose benefit the first
deeds were made.
2. A person taking a conveyance of a leasehold estate from one having a
perfect title of record, without notice, and for a full consideration, will be
protected from any secret equities in favor of a former owner and those
claiming under him, and will not be held responsible for acts of bad faith
on the part of those from whom he acquires the title.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county ; the Hon. Thomas A. Moran, Judge, presiding.
Mr. H. 0. McDaid, pro se:
Hoyne and Call had constructive notice that the deeds from
appellant to Gibbs, trustee, were mortgages. Whatever is suf-
ficient' to put a party upon inquiry, is notice. Doyle v. Teas,
4 Scam. 202; Alwood v. Mansfield, 59 111. 496; Redden v.
Miller, 95 id. 336 ; Shepardson v. Stevens, 71 id. 646 ; Mtna
Life Ins. Co. v. Ford, 89 id. 252; Cox v. Milner, 23 id. 476;
Smith v. Ayer, 101 U. S. 320.
A purchaser is bound to take notice from the recitals in
the deeds constituting the chain of title. Spaids v. Insurance
Co. 99 111. 249 ; Railroad Co. v. Kennedy, 70 id. 350 ; Blais-
dell v. Stevens, 16 Vt. 479; Dudley v. Warner, 46 Ala. 664;
Rupert v. Marks, 15 111. 540; Morrison v. Kelly, 22 id. 610;
Morris v. Hogle, 37 id. 150 ; McConnell v. Read, 4 Scam.
117; Stumpfy. Osterhage, 94 111. 115.
The words "trustee," and "as trustee," after the name of
the grantee, were notice of the grantor's equities. Sturtevant
v. Jaques, 14 Allen, 523 ; Shaw v. Spencer, 100 Mass. 382.
Independent of the registry laws, a party can not convey
any greater title than he has. Lee v. Getty, 26 111. 76 ; Purdy
v. Huntington, 42 N. Y. 334 ; Delano v. Bennett, 90 111. 533.
A deed of a mortgagor to a mortgagee always provokes
inquiry. Enner v. Thompson, 46 111. 222 ; Sutphen v. Cush-
man, 35 id. 197; Jones on Mortgages, sec. 872.
300 McDaid v. Call.
Brief for the Appellee.
Before a purchaser can be protected he must have paid
the whole consideration. Brown v. Welch, 18 111. 343; Keys
v. Test, 33 id. 316.
No estoppel by deed, so-called, can be successfully urged
against redeeming from an absolute deed, if it is, in fact, a
mortgage. Sutphen v. Cushman, 35 111. 197; Enner v. Thomp-
son, 46 id. 222.
It can not be said that this unrecorded quitclaim deed,
which this record shows has been decreed to have been a
mortgage, only, constitutes a link in the chain .of title. Lee
v. Getty, 26 111. 76 ; 3 Washburn on Eeal Prop. 352.
Mr. James E. Mann, for the appellee :
The word "trustee," attached to a name, is merely descrip-
tive, and does not limit liability or authority, and is not notice
of a trust. Powers v. Briggs, 79 111. 493 ; Allen v. Woodruff,
96 id. 24.
Parties have a right to treat a deed given as a security, as
an absolute deed. Carpenter v. Carpenter, 70 111. 462 ; Broivn
v. Gaffney, 28 id. 155; Fay v. Valentine, 12 Pick. 40.
Huey was entitled to believe the whole information received
from Gibbs, and to believe that part stating that McDaid's in-
terest had ceased. Buttrick v. Holden, 13 Mete. 355; Calais
Steamboat Co. v. Van Pelfs Admr. 2 Black. 377.
The fact that knowledge that an absolute conveyance was
intended as a secret mortgage was brought home to a subse-
quent purchaser, should be plainly proven, and the burden
is on the party seeking to redeem. Maxfield v. Patchen, 29
111. 42.
The question is not whether the subsequent purchaser might
not have learned the facts, but whether his failure to do so
was an act of gross or culpable negligence. Grundies v. Beid,
107 111. 304; Jones v. Smith, 1 Hare's Ch. 55; Ware v. Lord
Egmont, 4 DeG. M. & G. 473 ; Hamilton v. Marks, 63 Mo.
167; Story's Eq. Jur. (12th ed.) 382.
McDaid v. Call. 301
Opinion of the Court.
Mr. Justice Mulkey delivered the opinion of the Court :
This is a controversy about the title to a leasehold estate
in a lot of ground on State street, in the city of Chicago, and
referred to in the record, by witnesses, as the "State street
property." In 1874, Marcus C. Stearns, being the owner in
fee of the property, executed a lease thereon to Charles C.
Fisher, for the term of ninety-nine years, which subsequently
came to the appellant, Henry 0. McDaid, by assignment,
who, in April, 1879, was the owner thereof, subject to cer-
tain incumbrances not necessary to mention. Being thus
owner, on the 21st of April, 1879, McDaid conveyed the
property, by special warranty deed, to George A. Gibbs, and
on May 10th of the following month, McDaid executed to
him another special warranty deed for the same property.
The first of these deeds is made to "George A. Gibbs, trustee,"
and the last one is made to George A. Gibbs, "as trustee,"
and its operation is expressly limited to the leasehold interest.
Both the deeds, though absolute in form, were, as between the
immediate parties, in legal effect mortgages only. The first
was given to secure a loan of $1000, evidenced by McDaid's
note to Benjamin F. Crosby and George A. Gibbs, bearing
date April 22, 1879, and payable at sixty days. The second
deed was executed to secure a loan of $2355.55, evidenced
by McDaid's note of same date to Calista M. King, payable
ninety days after date. Both deeds were recorded on the
12th day of May, 1879. To each of the above notes was at-
tached an instrument or memorandum, showing that McDaid
had deposited with the payee, as security for its payment,
among other things, "a deed of the said McDaid, under a cer-
tain lease, between Marcus C. Stearns and Charles C. Fisher,
dated August 20, 1874," of the property in question, and to
each was also attached a power of attorney, executed by the
maker, authorizing the confession of a judgment thereon.
On the 4th of June, 1879, Crosby and Gibbs borrowed of
302 McDaid v. Call.
Opinion of the Court.
James Crow $2000, for which they gave their note, at ninety
days, to secure the payment of which they turned over to
Crow the two notes of McDaid, above mentioned, with the
memoranda thereto attached, each being indorsed in blank,
and Crosby swears he told Crow, at the time, these deeds of
McDaid were mortgages on the property. Upon the execu-
tion of the above mentioned conveyances by McDaid to Gibbs,
the latter assumed exclusive control of the property, and
treated it in every respect as if he were the absolute owner.
In May, 1881, negotiations were instituted between Gibbs
and the appellee, Francis M. Call, for the purchase by the
latter of the leasehold interest in the property, which resulted
in a proposition from Gibbs to sell the same for $11,500.
This proposition was accepted, subject to the condition the
title was satisfactory, and Call made a deposit of $500, under
the agreement. Shortly afterwards, Gibbs, under the direc-
tions of Call, delivered to J. S. Huey, (Call's attorney,) the
abstract of title to the property, for examination. Huey,
on discovering the word "trustee" after Gibbs' name, in the
deeds from McDaid, called on Gibbs for an explanation,
which being given, Huey informed him it would be neces-
sary to obtain a quitclaim deed from McDaid and releases
from his creditors, and for this purpose Huey and Gibbs
together called on McDaid, and according to the testimony of
Huey, McDaid, in their presence, disclaimed having any in-
terest in the property, and expressed a willingness to execute a
quitclaim deed. There is some conflict, however, between the
witnesses, both as to when this interview took place and also
as to what passed between the parties. However this may be,
and without expressing any opinion as to whose recollection
is correct in the matter, it is sufficient for the purposes of a
decision of the case, the title of the property was being investi-
gated with a view of purchase, and that McDaid subsequently
made a conveyance of it to Hoyne. Gibbs, on his part, pro-
ceeded to obtain releases from McDaid's judgment creditors,
McDaid v. Call. 303
Opinion of the Court.
and succeeded in getting them from all except one. Pending
these matters, Michael A. Hoyne, being desirous of purchas-
ing the lease in question, proposed to pay Call a bonus of
$500 for his contract with Gibbs. Call accepted the propo-
sition, and by mutual consent of all parties concerned, Hoyne
became the purchaser of the property instead of Call, and
received from Gibbs, "trustee," a warranty deed therefor,
bearing date June 1, 1SS1, which was duly recorded on the
21st of the same month. McDaid, by quitclaim deed bear-
ing date June 16, 1881, conveyed the premises to George A.
Gibbs, which was recorded on the 24:th of July, 1882. Of
course whatever interest, if any, passed by this deed, inured
to Hoyne, by virtue of Gibbs' warranty deed of June 1, 18S1.
Michael A. Hoyne, by deed bearing date June 27, 1881, re-sold
and conveyed the property in controversy to Francis M. Call,
the deed being duly recorded on the 30th of the same month.
Such being the condition of the title to the property, and of
the relations of the parties heretofore mentioned with respect
to it, James Crow, on the 10th day of March, 1882, filed in the
circuit court of Cook county the original bill in this cause, for
the purpose of foreclosing his alleged mortgage on the prop-
erty, making Crosby, Gibbs, McDaid, Call and Hoyne, parties
thereto. Hoyne answered, and disclaimed. Call answered
that he was a purchaser for a valuable consideration, without
notice. McDaid answered, and filed a cross-bill claiming to
be the equitable owner of the property, subject to the alleged
incumbrances heretofore mentioned. The court, on the hear-
ing, dismissed the original bill as to Call and Hoyne, and also
McDaid's cross-bill as to all tire defendants, and the decree,
on appeal to the Appellate Court for the First District, was
affirmed. McDaid alone appealed from the judgment of the
Appellate Court, and the record is now before us for review.
In the view we take of this case we do not deem it neces-
sary to pass upon the legal question, whether, where one who
claims through a conveyance wherein the grantee is desig-
304 McDaid v. Call.
Opinion of the Court.
nated "trustee," or where the conveyance is made to him
"as trustee," and the deed is otherwise absolute in form, and
contains no limitation on the power of the grantee to convey,
nor gives any intimation as to the character of the trust,
assuming one to exist, as was the case here, will be bound
by any latent equities that may exist between the grantee in
such conveyance and some undisclosed beneficiary. Nor do
we deem it necessary to determine whether either Hoyne or
Call, prior to the conveyances made to them, respectively,
had actual notice of the alleged equities of McDaid, for, ad-
mitting both these propositions must be answered in the
affirmative, about which we express no opinion, we still think
the decree in the case is clearly right.
Assuming, then, for the purposes of the argument, that
Hoyne and Call both originally had notice of McDaid's equi-
ties, yet when McDaid, pending these transactions, quit-
claimed to Gibbs, this clearly operated, prima facie, as a
release of the mortgage, and clothed Hoyne with the apparent
absolute title.
It is claimed, however, that this quitclaim deed was noth-
ing more than an additional mortgage. Concede this to be
true, and that it was so understood between the parties to it,
still, there is not the slightest foundation for the claim that
Call had any notice or knowledge of that fact. By reason of
its execution, Hoyne was clothed with the apparent owner-
ship of the property. He had a perfect title of record, and
Call, in purchasing from him, had a right to rely on it, as he
did, and his title must be protected. If others have acted in
bad faith with McDaid, as claimed, the consequences of it
surely ought not to be visited upon Call, who is in no sense
responsible for it.
The decree of the court below being in harmony with this
view of the matter, the judgment of the Appellate Court is
affirmed.
Judgment affirmed.
Gage v. Hervey. 305
Syllabus. Brief for the Appellant.
Asahel Gage
v.
m
Frances W. Hervey.
Filed at Ottawa November 17, 1884.
1. Tax title — affidavit as to notice of purchase. Unless the statute
has been complied with in making the affidavit necessary to procure a tax
deed on a tax purchase, the deed may be set aside on the application of the
owner of the patent title, upon equitable terms.
2. Same — of the notice to entitle purchaser to deed. Where the affidavit
made to entitle the holder of a tax certificate of purchase to a deed, shows
that the property was "taxed or specially assessed in the names of Robert
Hervey and Robert Henry," and the allegation of service is that "he served
said notice on said Robert Hervey and Robert Henry, by handing the same
to and leaving the same with Robert Hervey personally, " it fails to show a
sufficient service as to Robert Henry, and will not authorize the making of a
tax deed, and if made, it may be set aside as a cloud on the title, upon pay-
ment of the amount paid at the tax sale and for subsequent taxes, with six
per cent interest.
Appeal from the Circuit Court of Cook county; the Hon.
Thomas A. Moran, Judge, presiding.
Mr. Augustus N. Gage, for the appellant :
The bill is demurrable, and the demurrer filed by appel-
lant should have been sustained.
The proof does not sustain the allegations of irregularity
in either of the tax deeds. It does not appear by the proof
that the complainant was in possession of the property when
the bill was filed, or that the property was vacant and unoc-
cupied at that time; and the compjainant has failed to show
that any title to the property was in her, but has sufficiently
shown that her interest had already been conveyed to 0. L.
Wheelock, who was therefore a necessary party to the bill.
The decree is erroneous in not requiring the appellee to
pay to appellant such penalties and costs as a minor or one
under disability would be required to pay in order to redeem
from a tax sale. Gage v. Basse, 102 111. 592.
20—111 III.
306 Gage v. Hervey.
Brief for the Appellee. Opinion of the Court.
Messrs. J. P. & T. E. Wilson, for the appellee :
The affidavit of the service of notice of the time when the
redemption expired, is insufficient to show a legal and proper
service of notice. The statute requires the notice to state
for what year taxed.
The affidavits are defective in not showing that the lots
were vacant at the time when the notice of the tax sale was
published. Gage v. Bailey, 100 111. 530 ; Campbell v. McCa-
han, 41 id. 45.
That it is a fatal defect in a notice to state that the time
of redemption expires on the wrong date, has been frequently
decided by this court. Gage v. Bailey, 100 111. 530 ; Wilson
v. McKenna, 52 id. 43; Barnard v. Hoyt, 63 id. 341.
It is well settled by the decisions of this court that pos-
session is sufficient evidence of ownership in fee to entitle a
party to recover in ejectment, or to maintain a bill to remove
a cloud. Keith v. Keith, 104 111. 397 ; Brooks v. Bruyn, 18
icl. 539, and 24 id. 372 ; Barger v. Hobhs, 67 id. 592 ; McLean
v. Farden, 61 id. 106; Hubbard v. Kiddo, 87 id. 578.
By the decisions of this court the rule has become well
settled that the amount the court should require to be paid
to the holder of a tax title, upon setting aside his tax deeds,
is the amount paid out, with interest. Smith v. Hutchinson,
108 111. 662 ; Barnett v. Clihe, 60 id. 205 ; Farwell v. Hard-
ing, 96 id. 32.
Mr. Justice Scott delivered the opinion of the Court :
The bill in this case was brought by Frances W. Hervey,
against Asahel Gage, in the circuit court of Cook county.
Complainant alleges she is the owner in fee simple of certain
lots or parcels of land described in the bill, and that she was
in possession of the same, and the object of the bill is to
have two tax deeds made to defendant, purporting to convey
the property to him, cancelled and set aside as void, and as
a cloud upon her title. To the bill, alleging with sufficient
Gage v. Hervey. 307
Opinion of the Court.
fullness all the facts relied upon for relief, defendant filed a
general demurrer, which was by the court overruled, and de-
fendant then filed his answer to the bill, by which the mate-
rial allegations of the bill were put at issue, and the same
matters presented for decision as on the demurrer, and the
same benefit claimed. Eeplication to the answer was filed,
and on the hearing the court entered a decree giving relief
substantially as sought by the bill, on condition complainant
would refund to defendant the amount paid by him at the
tax sales and in discharge of subsequent taxes, with interest
at the rate of six per cent per annum, which amount was
ascertained and stated in the decree.
It sufficiently appears that complainant was in possession
of the property at the time she exhibited her bill, and had
such interest in the property as would enable her to main-
tain it.
As respects the first tax deed, it is not very strenuously
insisted it is valid. It appears from the certificate of sale,
the property was sold by the city collector of the city of Chi-
cago for the year 1871, and under the previous decisions of
this court the sale was void, as being inhibited by a con-
stitutional provision. Const. 1870, sec. 4, art. 4; Hills v.
Chicago, 60 111. 86. . But it is confidently insisted the second
deed, which seems to have been made to defendant July 16,
1879, as assignee of H. Combs, is valid, and constitutes para-
mount title in defendant. It is thought one objection taken
to this deed is fatal to its validity, and justified the decree
of the circuit court declaring it void, and removing it as a
cloud upon complainant's title to the property. It seems
quite clear the affidavits made and filed for the purpose of
procuring the tax deed, do not show a full compliance with
the law, at least in one respect. Unless the statute has been
complied with, the tax deed may be set aside, on the appli-
cation of the owner of the patent title, upon terms that shall
be deemed equitable.
308 Gage v. Hervey.
Opinion of the Court.
Section 216 of the Eevenue act, (Rev. Stat. 1874,) is im-
perative no purchaser or assignee of such purchaser of any
real property, for taxes or special assessments due either to
the State or to any municipality, shall be entitled to a deed
for the property so purchased until the conditions stated in
that section shall have been complied with. Among other
conditions therein stated is one that such purchaser or as-
signee shall serve, or cause to be served, a written or printed,
or partly written and partly printed, notice of such purchase
on "the person in whose name the same was taxed or spe-
cially assessed, if, upon diligent inquiry, he can be found
in the county," at least three months before the expiration
of the time of redemption on such sale, in which notice he
shall state when he purchased the land or lot, in whose name
taxed, the description of the land or lot he has purchased,
for what year taxed or specially assessed, and when the time
of redemption will expire. Section 217 of the same act de-
clares every such purchaser or assignee, by himself or agent,
shall, before he shall be entitled to a deed, make an affidavit
of his having complied with the conditions of section 216,
stating particularly the facts relied on as such compliance.
Affidavits were made and delivered to the person authorized
by law to execute such tax deed, for the purpose of showing
a compliance With the law. In one respect the affidavits
appear to be fatally defective, — that is, they do not show that
notice of the purchase was served upon the persons in whose
names the property was assessed, as the statute requires
shall be done. Two affidavits were made, in both of which
it is stated "the land was taxed or specially assessed in the
names of Eobert Hervey and Robert Henry, " and the allega-
tion as to the service of notice is, that "he served said notice
on said Robert Hervey and Robert Henry, by handing the
same to and leaving the same with Robert Hervey personally."
Obviously this is not sufficient service of the notice upon
Robert Henry. Leaving a notice with Robert Hervey is not
Electric Co. v. Manufacturing Co. 309
Syllabus.
serving it upon Eobert Henry. Nor is there any allegation
in either affidavit that Eobert Henry could not be found in
the county, so as to authorize publication as to him.
It is a sufficient answer to the suggestion that Robert
Hervey and Robert Henry may be one and the same person,
that the record contains no evidence such is the fact. The
affidavits both declare the property was "taxed or specially
assessed" in the names of Robert Hervey and Robert Henry.
This would seem to imply Robert Henry is a real person other
than Robert Hervey.
As there was no service of notice on the parties in whose
names the property was taxed or specially assessed, the deed
was -therefore without warrant of law, and was properly set
aside for that reason. Nor is there any just reason for any
complaint as to the terms imposed by the court as a condi-
tion upon which the tax deed might be set aside. Without
entering upon any extended consideration of that branch of
the case, it may be said the terms imposed seem both just
and reasonable.
The decree of the circuit court will be affirmed.
Decree affirmed.
The Chicago Sectional Electric Underground Company
v.
The Congdon Brake Shoe Manufacturing Company.
Filed at Ottawa November 17, 1884.
1. Contradicting sheriff's return— by a plea in abatement. A
defendant corporation may plead in abatement to the service of process, by
contradicting the sheriff's return; and where it tenders a material issue, and
is properly verified, it is error to strike the plea from the files.
2. Same — sufficiency of plea. A plea in abatement by a corporation to
the jurisdiction over its person, showing its organization under the laws of
this State, and its representation by its president, naming him; that at the
time of the issuing and service of the summons the president was a resident
310 Electric Co. v. Manufacturing Co.
Brief for the Appellant.
of the county, and not absent from the same, and that the service was not
made upon him, presents an immaterial issue, and is obnoxious to demurrer,
in not putting in issue the return that the sheriff was unable to find the presi-
dent in the county.
3. Service op peocess — on corporation — sufficiency of return. A
return to a summons against a private corporation was as follows: "Served
this writ on the within named defendant, C. S. E. U. Co., by delivering a
copy thereof to E. N. K., director and treasurer of said company, the presi-
dent of said company not found in my county, the 23d day of November,
1883:" Held, that the return was good, filling the requirements of the statute.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county; the Hon. Elliott Anthony, Judge, presiding.
Mr. Lynn Helm, and Mr. George A. Hawley, for the ap-
pellant :
The officer's return of service of summons is not conclusive.
It may be shown to be untrue, either in the same proceeding
or where attacked collaterally. Sibert v. Thorp, 77 111. 43 ;
Owen v. Ranstead, 22 id. 162 ; Aldrich v. McKinney, 4 Conn.
380; Broivn v. Brown, 59 111. 315; Hickey v. Stone, 60 id.
459 ; Ryan v. Lander, 89 id. 554.
In order to controvert the facts recited in an officer's return
to service of original process, the facts therein recited must
be put in issue by plea in abatement. This is the proper
and only way to raise an issue of fact on the officer's return.
Railroad Co. v. Keep, 22 111. 9 ; Hollo way v. Freeman, id. 197;
Sibert v. Thorp, 77 id. 43 ; Union National Bank v. First
National Bank, 90 id. 56.
The plea in abatement filed in this case had all the requi-
sites of a good plea in abatement, and was filed in proper
time. Eev. Stat. chap. 1, sec. 1; 1 Chitty's Pleading, 455-
462; CookY. Yarwood, 41 111. 115; Ryan v. Lander, 89 id.
554 ; Union National Bank v. First National Bank, 90 id. 56.
The defendant did not need to file with its plea in abate-
ment an affidavit of merits. Eev. Stat. chap. 110, sec. 37;
Kassing v. Griffin, 86 111. 265.
Electric Co. v. Manufacturing Co. 311
Brief for the Appellee.
Being proper in form and properly tiled, it was error in the
court below to strike the plea in abatement from the files,
even though the court below was of opinion that the service
of the sheriff was a good service in law, and a sufficient com-
pliance with the statute. Frink v. King, 3 Scam. 144 ; Orne
v. Cook, 31 111. 258 ; Hcereth v. Franklin Mill Co. 30 id. 151 ;
King v. Haines, 23 id. 340.
Though the return of the officer was a sufficient compli-
ance with the statute, yet the facts therein recited could be
put in issue and controverted by the defendant. Railroad
Co. v. Keep, 22 111. 9; Holloway v. Freeman, id. 197; Sibert
v. Thorp, 77 id. 43; Union National Bank* v. First National
Bank, 90 id. 56 ; Ryan v. Lander, 89 id. 554.
The return of the officer was but an evasion of the statute,
and not in sufficient compliance with it. Corporations have
a right, for their protection, to have the officer serving pro-
cess upon them serve their president, if, by any means, he
can be found within the jurisdiction of the court. Eev. Stat.
chap. 110, sec. 4; Railroad Co. v. Dorsey, 47 111. 289; Rail-
road Co. v. Dawson, 3 Bradw. 118.
Mr. H. H. C. Miller, for the appellee :
The service in this case was good, and the officer's return
to the writ in strict conformity with the statute. Railroad
Co. v. Koehler, 79 111. 354; Railroad Co. v. Holbrook, 92 id.
297; Bev. Stat. chap. 110, sec. 5; chap. 7, sec. 6.
The person shown by the officer's return to have been
served, was, in fact, a director of the defendant corporation.
This the plea in abatement admits. It does not raise an
issue with anything in the return.
Appellant was not injured, nor its rights in any way affected
or impaired, by the manner in which the plea in abatement
was disposed of, and though it may have been irregular, yet,
under the circumstances, it was not error for which this court
will reverse. Addems v. Suver, 89 111. 4S2 ; Railroad Co. v.
12 Electric Co. v. Manufacturing Co.
Opinion of the Court.
Rung, 104 id. 641 ; Lycoming Fire Ins. Co. v. Dumnore, 75
id. 14; Hartford Fire Ins. Co. v. Olcott, 97 id. 439; Atkins
v. Byrnes, 71 id. 327; Loivry v. Coster, 91 id. 182; Railroad
Co. v. Town of Lake View, 105 id. 207; Conklin v. Bwrdick,
6 Bradw. 153; Railroad Co. v. Cloud, id. 155.
Appellant, by entering its motion in said cause to strike
plaintiff's affidavit of amount due from the files, and in mov-
ing the court in arrest of judgment, fully appeared in said
cause for all purposes, and thereby waived all irregularity in
the service of process, if any existed. Miles v. Goodwin, 35
111. 53; Abbott v. Semple, 25 id. 107; Flake v. Cowen, 33 id.
526 ; Easton v. Altum, 1 Scam. 250.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
This is assumpsit, by appellee, against appellant. The
return upon the summons is as follows :
"Served this writ on the within named defendant, Chicago
Sectional Electric Underground Company, by delivering a
copy thereof to E. N. Koch, director and treasurer of said
company, the president of said company not found in my
county, the 23d day of November, 1883.
Seth F. Hanchett, Sheriff.
By D. W. Nickeeson, Deputy."
Appellant, on the 3d of December, 1883, filed a plea in
abatement, which, omitting the caption, is as follows :
"And the said Chicago Sectional Electric Underground
Company, by its attorneys, Tripp, Hawley & McMaster, comes
and defends, etc., and says, at the time of issuing said writ,
and at the time of service thereon on said defendant, and at
all and every of said times aforesaid, said defendant was a
corporation of the State of Illinois, legally and fully organized
by the laws of the State of Illinois, and doing business under
the same, with its principal office in said county of Cook, in
the State aforesaid, and that it was fully represented, at all
Electric Co. v. Manufacturing Co. 313
Opinion of the Court.
and every of said times aforesaid, by its president, Louis
Wahl, who was, at the time of issuing and serving said writ
against said defendant, a resident of said county of Cook and
State of Illinois, and not absent from the same at said times
aforesaid, but all and every of said times was present in said
county, and that nevertheless the service of said writ of sum-
mons against said defendant, and of all process in said cause
herein, was not made and had upon said Louis Wahl, presi-
dent of said defendant, but upon another and different per-
son, to-wit, a director of said corporation defendant, and that
no service of any process or writ in said cause has been made
on said president of said defendant, and this said defendant
is ready to verify. "Wherefore defendant prays judgment, if
the court here will take cognizance of the action aforesaid."
Annexed to the plea is the affidavit of the president that
it "is true in substance and in fact."
On motion of appellee's attorney, the court ordered the
plea stricken from the files, on the ground that the appellant
was properly served, and the return of the sheriff is in sub-
stantial compliance with the statute. The court then refused
to enter judgment by default against appellee, but gave him
until the next morning to plead or demur to the declaration.
Appellant, by its attorney, then moved to strike plaintiff's
affidavit of amount due, from the files, but the court over-
ruled the motion. On the day next following, appellant's
attorney not having demurred or plead to the declaration,
appellee, by its attorney, moved the court to enter judgment
by default against appellant, but the court overruled the mo-
tion, and gave appellant until the 10th of December, 1883,
to plead or demur to the declaration, and on that clay, appel-
lant not having plead or demurred to the declaration, the
court entered judgment by default against appellant, and
assessed appellee's damages at $2018, Exception was taken
by appellant to the several rulings of the court adverse to it3
and these rulings are now urged as error.
314 Electric Co. v. Manufacturing Co.
Opinion of the Court.
The plea in abatement, very clearly, ought not to have
been stricken from the files. It was competent to raise an
issue of fact upon the sheriff's return, (Sibert v. Thorp, 77
111. 43, Mineral Point R. R. Co. v. Keep, 22 id, 9,) and the
plea was properly verified. But we are of opinion the plea
tendered an immaterial issue, and was therefore obnoxious
to demurrer. The statute provides : "An incorporated com-
pany may be served with process by leaving a copy thereof
with its president, if he can be found in the county in which
the suit is brought ; if he shall not be found in the county,
then by leaving a copy of the process with any clerk, secre-
tary, superintendent, general agent, cashier, principal direc-
tor, engineer, conductor, station agent, or any agent of said
company found in the county." (Rev. Stat. 1874, p. 775,
sec. 5.) The service- here, in form, followed this requirement
of the statute, and was, therefore, prima facie sufficient.
Chicago and Pacific R. R. Co. v. Kcehler, 79 111. 354. The
language of this section is quite different from that under
which St. Louis, Alton and Terre Haute R. R. Co. v. Dorsey,
47 111. 289, was decided. That was : "In all cases where
suit has been or may hereafter be brought against any incor-
porated company, process shall be served upon the president
of such company, if he reside in the county in which suit is
brought ; and if such president be absent from the county,
or does not reside in the county, then the summons shall be
served," etc., (Gross' Stat. 1869, p. 509, sec. 6,) and hence,
to justify service on any one other than the president, it was
essential to show either that he did not reside in the county,
or that he was, at the time, absent from the county, while
here, it will be observed, it is only necessary to show that
he "can not be found in the county." The change in phrase-
ology is marked, and was evidently designed to authorize ser-
vice on the other officers and agents named, whenever the
president could not be found in the county, without regard to
where he might actually be. The allegation in the plea does
Walker v. Kay. 315
Syllabus.
not put in issue the return that the sheriff was unable to find
the president in the county, but is simply that he then resided
and was in the county, — non constat, he may have been hid
away where he could not be found by any reasonable effort,
and that, too, for the express purpose of avoiding service.
The issue tendered, then, being immaterial, and the return,
upon its face, sufficient, it is impossible that appellant can
have been injured by the ruling in striking the plea from the
files ; and it is familiar doctrine in this court that a party
can not have a cause reversed for an error which works him
no injury.
No reason is assigned why the affidavit annexed to the
declaration should have been stricken from the files, and we
are unable to discover any error in that regard.
The only remaining error alleged is, that the court did not
call a jury to assess damages ; but it is only when one of the
parties requires it, that, in case of default, damages are to be
assessed by a jury. It does not here appear that either party
asked to have damages assessed by a jury. Eev. Stat. 1874,
p. 780, sec. 40.
We perceive no cause to disturb the judgmeut below. It
is therefore affirmed.
Judgment affirmed.
Mary L.% Walker
v.
Esther Kay.
Filed at Ottawa November 17, 1884.
1. Limitations, and lapse of time aside from the statute — in equity.
As a general rule, subject to a few exceptions, a court of cbancery follows
the law in applying the Statute of Limitations to cut off stale demands; and
where there are exceptions, a sufficient equitable excuse should be alleged
and proved to account for the delay.
316 Walker v. Kay.
Brief for the Plaintiff in Error.
2. Same — adverse possession of land — to defeat a specific performance
— laches, within the statutory limit. While a court of equity, as a general
rule, will give effect to the Statute of Limitations, it goes further in the
interest of justice, and holds there is laches in many cases where there would
be no bar to an action at law. Adverse possession of land for the statutory
period of limitation, under a legal title, is not necessary to defeat a bill in
equity to establish an equitable title, and enforce a specific performance of
a verbal contract.
3. Same— laches as against infants. Laches will not be imputed to
infants during the period of the disability. It will be imputed only from
the removal of the disability.
4. Pleading and evidence — defence as against imputation of laches
— how availed of. In equitj7, if a complainant has any grounds of exception
to prevent the bar of laches, or repel the presumption arising from delay in
asserting an alleged right, the proper practice requires him to state such
matters of avoidance in his bill; but under the present liberal practice as to
amendments, the court may allow such matters to be brought into the case
by an amendment to the bill. This equitable bar to relief can not be avoided
by proof showing an excuse for the delay, unless such excuse is alleged in
the bill.
5. In this case, a bill for the specific performance of a verbal contract to
convey an interest in land, was filed by the complainant about twenty-five
years after the alleged contract, against a minor heir and her father, having
a life estate. It failed to allege any excuse for the delay. On writ of error
by the minor, on arriving at her majority, a decree against her was reversed
on account of the insufficiency of the bill, it showing on its face a want of
equity.
6. It is a familiar rule of chancery practice that the allegations in the
pleadings must agree with the proofs. Any evidence which has not its proper
foundation in the pleadings, can not avail.
7. Same — former decision. So far as anything here said is in conflict
with the case of Trustees of Schools v. Wright, 12 111. 432, it is intended to
overrule that case to that extent.
Writ of Error to the Circuit Court of Cook county ; the
Hon. E. S. Williams, Judge, presiding.
Mr. Edward Eoby, for the plaintiff in error :
The bill, on its face, shows such delay and laches as to
form a bar to the suit. That appearing in the bill, advan-
tage of it could have been taken by demurrer. 1 Daniell's
Chancery Practice, 559, note 9.
Walker v. Eay. 317
Brief for the Plaintiff in Error.
Upon the face of the decree the bill was barred, and the
decree shows conclusively that no claim ever existed, or that
it has been surrendered or released. Powell on Evidence,
49, 327; Mathews on Presumptive Evidence, 5, 8, 11-13,
382, 3S7, 388, 413; Fonblanque's Equity, 331; Broom's
Legal Maxims, 892, 893, 897; 1 Greenleaf on Evidence,
sec. 32.
In McDonald v. Stow, 109 111. 45, this court held that
delay of seven years should bar the assertion of a resulting
trust ; fifteen years was held a bar in Whipple v. Whipple,
109 111. 424 ; fourteen years in Rogers v. Simmons, 55 111. 77 ;
nineteen years in Castner v. Walrod, 83 111. 171 ; less than
five years in Williams v. Rliodes, 81 111. 571 ; eighteen years
in Carpenter v. Carpenter, 70 111. 463 ; and twenty years in
Walker v. Carrington, 74 111. 446. In Dicherman v. Burgess,
20 111. 276, the court said : "It is also a rule that a party
shall not claim the aid of a court of equity, who has been
guilty of laches, unless that laches can be imputed to the
party claiming against him." And in McKean v. Vick, 108
111. 376, it was held that seven years' delay, unexplained,
bars all claims for money against the land of a deceased
person. v
Courts will not enforce a resulting trust after a great lapse
of time, or laches on the part of the supposed cestui que trust.
Perry on Trusts, sec. 141.
A minor is entitled to the protection of the courts, whether
his guardian pleads properly or not. Gilmore v. Gilmore,
109 111. 277; Stark v. Brown, 101 id. 395.
A guardian or next friend is powerless to admit away any
of the rights of a minor. Railroad Co. v. Kennedy, 70 111.
350 ; Greenman v. Harvey, 53 id. 389 ; Cochran v. McDowell,
15 id. 10 ; Reddick v. State Bank, 27 id. 14S ; Masterson v.
Wiswold, 18 id. 48.
318 Walker v. Kay.
Brief for the Defendant in Error. Opinion of the Court.
Mr. Albert H. Veeder, Mr. A. H. Lawrence, and Mr.
F. A. Smith, for the defendant in error:
The defence of the Statute of Limitations, and laches, was
not in any mode pleaded to Kay's bill. If a party would
rely upon such defence, he must set it up by demurrer, plea
or answer.
A person having an equitable interest in land can enforce
it in equity, the same as he could at law, if his title were
legal. If he would not be barred at law, he would not in
equity. Daniell's Chancery Practice, 560 ; Kane County v.
Herrington. 50 111. 232 ; Ryder v. Emrich, 104 id. 470.
None of the cases cited relating to laches, involved result-
ing trusts. Until a title, be it legal or equitable, is denied,
and a hostile possession taken, the limitation does not com-
mence to run. Clark v. Lyon, 45 111. 388.
Mr. Justice Walker delivered the opinion of the Court :
In February, 1848, Thomas A. Speers paid to the receiver
of the land office at Chicago, fifty dollars for the entry of the
south-east quarter of the north-west quarter of section 17,
town 37, north, range 15, east of the third principal meridian,
containing forty acres, and received a certificate of entry
therefor. In May, 1849, a patent was issued to him for the
land. In 1854 or 1855 he died intestate, leaving no widow,
but a child, named Josephine Speers, then ten years old, as
his only heir at law, to whom the title descended. Subse-
quently, about the year 1860, she intermarried with Sidney
P. Walker, and had one child, Mary Louise, born the 21st of
December, 1863. In October, 1864, Josephine died intestate,
leaving surviving, her husband, Sidney P. Walker, and Mary
Louise Walker, then ten months old, her only child and heir,
to whom this land descended. On the 31st of January, 1874,
Samuel Eay, whose wife was an aunt of Mary Louise W^alker,
filed a bill against the latter and her father, Sidney P. Walker,
Walker v. Eay. 319
Opinion of the Court.
who was tenant by the curtesy and guardian of Mary Louise,
alleging the purchase and descent of the land as here stated,
but claiming that complainant was entitled to two-thirds of
the land, and Mary Louise held the title to his interest in
trust for him. He alleged that himself, Speers, and Martin
G. Taylor, furnished the money, in equal parts, to enter the
land, and it was the arrangement that each was to own an
undivided one-third part, and it was to be entered and pat-
ented in the name of Speers, and he was to convey their
several interests to complainant and Taylor. It is further
alleged, that about the first of May, 1850, after the patent
was issued to Speers, Taylor, for a valuable consideration
paid to him by complainant, sold his interest and claim
thereto to complainant, and afterwards, -on the 23d of June,
1873, Taylor and wife quitclaimed their interest to complain-
ant, which deed was recorded. On the 21st of July, 1877, on
a hearing, the court rendered a decree directing the title for
two-thirds of the tract to be conveyed to complainant, accord-
ing to the prayer of the bill, which was done. On the 23d of
January, Samuel Eay died testate, having devised the land
to his widow, Esther Eay, and Sarah J. Mann, Harriet Smith
and Josephine Kleinman, by his last will, which was, on the
6th of February, 1880, admitted to probate. On December 2
of that year, Esther Eay sold her interest to E. C. Kirkwood,
who, through a third party, conveyed it to Alice Kirkwood, his
wife, on the 28th of June, 1&81. On the 21st of December,
1881, Mary Louise Walker became eighteen years of age, and
on the 22d of August, 1883, filed a transcript of the record
in this court, and in it assigned errors, questioning the cor-
rectness of the decree.
It is urged that a delay of over twenty-five years after the
patent was issued vesting the title in Speers, before Eay filed
his bill, unexplained, is such gross laches as to bar all relief.
As a general rule, subject to few exceptions, a court of chan-
cery follows the law in applying the Statute of Limitations
320 Walker v. Kay.
Opinion of the Court.
to cut off stale demands ; and where there are exceptions, a
sufficient equitable excuse should be alleged and proved to
account for and justify the delay. In Henry County v. Win-
nebago Drainage Co. 52 111. 299, it was said, that if complain-
ant has any ground of exception to prevent the bar, or the
presumption arising from the length of time, the bill should
state it, — that it would not be subject to demurrer. This is
no doubt the correct practice ; but under our liberal practice
allowing amendments, if the bill was defectively framed in
this respect and a demurrer was sustained, .or the bar of
laches was set up as a defence, the court would permit an
amendment of the bill to avoid the bar, if the case was within
any exception to the statute, or complainant could show an
equitable excuse for delay in filing his bill. The same doc-
trine was announced in Anderson v. Frye, 18 111. 94. It was
there held that a party seeking specific performance must
show himself not to be in default in performing the agree-
ment, and "if he has been guilty of gross laches, or if he
applies after a long lapse of time, unexplained by equitable
circumstances, his bill will be dismissed." The same rule
was announced in Iglchart v. Gibson, 56 111. 81. In the case
of Hough v. Coughlan, 41 111. 130, it was said: "It is the
settled doctrine of courts of equity in England, and of this
court, that great delay of either party, unexplained, in not
performing the terms of the contract, or in not prosecuting
his rights under it by filing a bill, or in not prosecuting his
suit with diligence when instituted, constitutes such laches
as would forbid the interference of a court of equity, and so
amount, for the purpose of specific performance, to an aban-
donment, on his part, of the contract." This was a bill for
a specific performance, and it showed that twenty-six years
had elapsed after Eay's rights accrued, and a bill could have
been maintained for a specific performance at any time before
the bill was filed. Nor does the bill allege any excuse for the
delay. It was therefore defective, — so much so, that it not
Walker v. Kay. 321
Opinion of the Court.
only failed to show a right to relief, but on the contrary, it,
on its face, showed defendant in error was not entitled to a
decree. {Lloyd v. Kirkwood, 112 111. 329.) Had a demurrer
been interposed, it would have been sustained, because there
was no equity on the face of the bill. So far as anything is
here said in conflict with the case of Trustees of Schools v.
Wright, 12 111. 432, it is intended to overrule that case to
that extent.
A bill wholly insufficient to authorize the relief sought is
never aided by proof. If every allegation of a bill that shows
a want of equity, is proved, the proof shows no more equity
than the bill ; and if the proof goes beyond such a bill as
establishes ground for relief, the relief can not be granted,
because the allegations and proofs do not correspond. It is
a familiar rule of practice that the allegations and the proofs
must agree. Here, the bill showing defendant in error was
not entitled to relief, it was error to decree it, because it was
inequitable. It is therefore immaterial whether there was a
certificate of evidence or not, or whether the court below was,
or not, warranted in finding, by the decree, that the allega-
tions of the bill were proved, because if they were, they con-
stituted no ground of relief, because there was gross ladies in
filing the bill, — so gross as to preclude the decree for relief.
The cases of Kane County v. Herrington, 50 111. 232, and
Ryder v. Emrich, 10-1 id. 470, are referred to by defendant in
error as controlling this case. We fail to perceive that the
facts are at all similar. In the former of these cases the
county entered upon and appropriated lots to which minor
heirs held a trust, of which the agents of the county had
notice. After arriving at age, the heirs filed a bill to enforce
their trust estate. The county insisted that they were pre-
cluded from relief because the claim was stale ; but it was
held that the portion of time they were minors should not be
considered in determining that question ; that the time, only,
that elapsed after they arrived of age could be taken into
21—111 III.
322 Walker v. Kay.
Opinion of the Court.
account; that in analogy to the Statute of Limitations, a
sufficient time must elapse after arriving at age, to bar an
action at law, before there could be a bar in equity. There,
the party not under disability was seeking to invoke the bar
against minors, — here, the minor interposes the bar against a
party who was under no disability. In this there is a broad
and clear distinction. If that case has any bearing on this,
it is in favor of plaintiff in error, because she was a minor,
and during that period laches can not be imputed to her. In
the case of Ryder v. Emrich, laches was endeavored to be in-
voked against minors, and it was held that time did not run
against them, in equity, any more than at law. Thus it is
seen these cases have no controlling effect in favor of defend-
ant in error, as he was not a minor, but they do establish the
rule that laches will not be imputed to infants.
It is urged that inasmuch as the statute will not bar an
action of ejectment unless there has been an adverse posses-
sion, the rule in equity must be the same, — that in this case
plaintiff in error never took possession, but the premises are
unimproved and vacant. This is not the rule as to laches, in
equity. The delay or laches, in equity, does not in all cases
conform to the statute, whilst equity, as a general rule, will
give effect to the Statute of Limitations. It goes farther, in
the promotion of justice, and holds there is laches in many
cases where there would be no bar to an action at law. There
are numerous cases in this court where the doctrine of delay
has been applied to defeat the relief sought, where the statu-
tory period had not run. In some cases two years' delay has
been held to bar relief. Where there is such a change in the
relations of the parties, or such a change in the subject mat-
ter of the suit, as to render it inequitable to grant relief, it
will be refused, without reference to the statutory period;
or where the delay is so great in asserting the right, as to
create the presumption that complainant had abandoned his
claim, relief will be denied. (Hough v. Coughlan, supra.)
DeLand v. Dixon Nat. Bank. 323
Syllabus.
The court, in applying laches as a bar, acts on broader and
more comprehensive rules than the Statute of Limitations.
In this case complainant delayed the assertion of his rights
for more than a quarter of a century after he could have filed
his bill and obtained such relief as he was entitled to have.
Such delay compels the inference that he had abandoned his
claim long before he filed his bill, and a change of value of
the property, or some other motive, induced him to revive his
claim. Had he regarded his claim of any value, or had he
intended to assert it, he surely would, on purchasing Taylor's
interest, have had some writing to evidence the purchase.
On the contrary, he permitted it to lie on a mere verbal
understanding with him, for twenty-three years. This, if not
conclusive, is very satisfactory evidence that he had aban-
doned the claim. It is too stale to be enforced in equity.
The laches is gross, and the decree must be reversed and the
cause remanded.
Decree reversed.
George M. DeLand
v.
The Dixon National Bank.
Filed at Ottawa November 17, 1884.
1. Evidence — as to condition of bank account — countervailing testi-
mony as to payment. Where a hank depositor, in a suit against the bank,
shows his deposits of money, the burden will rest upon the bank to estab-
lish, by competent evidence, that the same has been paid out by or under
the authority of the depositor.
2. Credibility of witnesses — and weight of testimony — the jury to
determine. The jury are the sole judges of the credibility of the witnesses
and of the weight of the evidence, and the court, in its instructions, should
not infringe upon this rule, but should leave the jury free to determine for
themselves the weight of the evidence, and on which side it preponderates.
324 DeLand v. Dixon Nat. Bank.
Brief for the Appellant.
3. An instruction that if the jury believe, from the evidence in the case,
that the plaintiff has proved his case by only one witness, and that he has
been contradicted as to all material portions of his testimony by one witness
of equal credibility and means of knowledge, then, as a matter of law, the
plaintiff has not proved his case, is erroneous, even if there was no other
testimony in the case except that of the two witnesses, and especially when
the plaintiff had made out his case independently of the testimony of him-
self.
4. Agency — ratification by acquiescence. The fact that a depositor in a
bank remained silent for over two years after being informed that the cashier
had signed his name to a check, and took no measures to assert his rights,
may be regarded as a strong circumstance tending to show that the cashier
was authorized to draw the check; but it is error to instruct the jury, as a
matter of law, that if the depositor neglected to repudiate the act within a
reasonable time after being informed of the facts, he thereby ratified and
confirmed the act of the bank in charging him with such check.
Appeal from the Appellate Court for the Second District ; —
heard in that court on writ of error to the Circuit Court of Lee
county ; the Hon. John Y. Eustace, Judge, presiding.
Messrs. Barge, Eathbun & Barge, for the appellant :
The defendant undertook to collect the Dart note for the
plaintiff, and is responsible for the negligence or default of
a notary, or correspondent, or its own servants and agents.
Darcy v. Jones, 42 N. J. L. 28 ; Arnault v. Pacific Bank, 47
N. Y. 570; Walker v. Bank, 9 id. 582; Mtna Ins. Co. v.
Alton City Bank, 25 111. 243; Commercial Bank v. Union
Bank, 1 Kern. 203.
A forged indorsement or check can not be ratified. Shisler
v. Vandike, 92 Pa. St. 447 ; McHugh v. County of Schuyler,
69 id. 391.
The burden of proof was on the bank to show it had paid
out the deposit by authority. Watt v. Kirby, 15 111. 200.
Bankers are presumed to know the signatures of their cus-
tomers, and they pay checks purporting to be drawn on them,
at their peril. Weissen's Admr. v. Dennison, 10 N. Y. 68;
Bank v. Bicker, 71 111. 439; Price v. Neal, 3 Burr, 1354;
Wilson v. Alexander, 3 Scam. 392 ; Hoffman v. Bank of Mil-
DeLand v. Dixon Nat. Bank. 325
Brief for the Appellee. Opinion of the Court.
waukee, 12 Wall. 181 ; United States Bank v. Bank of Georgia,
10 Wheat. 333 ; Marine Bank v. Chandler, 27 111. 525 ; Marine
Bank v. Rnshmore, 28 id. 463 ; Linlcham d- Co. v. Hey worth,
31 id. 519.
Mr. A. K. Trusdell, for the appellee :
That appellant's acquiescence amounts to a ratification of
the cashier's act in signing his name to check, see 1 Liver-
more on Agency, 41 ; Paley on Agency, 171 ; Bank v. Warren,
15 N. Y. 577.
Where the court is satisfied, from the whole record, that
substantial justice has been done, it will not reverse. Glick-
auf v. Hirschliorn, 73 111. 577; Railway Co. v. Ingraham, 77
id. 309.
Mr. Justice Craig delivered the opinion of the Court :
George M. DeLand, appellant, was a depositor with the
Dixon National Bank from 1873 until 1877. In the month
of April, 1877, the bank made out and delivered to DeLand
a pass book and forty-two vouchers, which contained a full
statement of moneys received by the bank and moneys paid
out, as shown, by the forty-two vouchers. From 1S73 to
1877 DeLand had no book showing his transactions with
the bank, but the entire account was kept by the bank. The
statement of account, as furnislied by the bank in April,
1877, showed the account balanced, and nothing due DeLand.
No steps were taken by him in regard to the transaction until
October 17, 1879, when he brought this action, claiming a
balance due from the bank. The declaration contained the
common counts, under which the plaintiff claimed to recover
for money deposited with the bank, and for money collected
by the bank from other parties in his favor, and not paid
over. The defendant pleaded non assumpsit, and also a plea
of set-off. In the latter plea the defendant claimed to re-
De Land v. Dixon Nat. Bank.
Opinion of the Court.
cover two promissory notes, — one dated May 8, 18TS, amount
$127, and one for $707.62, dated November 15, 1877, exe-
cuted by DeLand and one Trueman, who was at the time
cashier of the bank. On a trial of the cause before a jury,
the bank recovered a judgment for $1093.93, — the amount
of the two notes and interest set out in the plea of set-off.
This judgment was affirmed in the Appellate Court, and
DeLand,. the plaintiff in the action, has appealed to this
court.
It was claimed on the trial that certain checks which pur-
ported to have been signed by DeLand, and which were
charged against him in the account rendered by the bank,
were never executed by him or by his authority. One of the
checks, — and, indeed, the only one over which there seems
to have been reasonable ground for controversy, — was dated
February 3, 1876, payable to J. C. Wiswell, or bearer, for
$600, signed "Geo. DeLand." The plaintiff testified that he
never signed this check or authorized it signed, while on the
other hand, Trueman testified that he drew and signed the
check for and at the request of DeLand, — that the money was
used to cover the loss in a wheat deal on the board of trade
in Chicago, in which the two were engaged. Whether this
check was drawn with or without the authority of DeLand,
was a question purely for the determination of the jury, and
the testimony bearing upon the point was in the main con-
fined to the evidence of DeLand on behalf of himself, and
of Trueman for the bank. It was therefore necessary, in
order that the jury might arrive at a correct result, that the
instructions should be accurate. Among others, the court,
on behalf of the bank, gave the following instruction :
"The court further instructs you, that the burden of proof
in this case is upon the plaintiff to prove his case ; and if you
believe, from the evidence in the case, that the plaintiff has
proved his case by only one witness, and that he has been
DeLand v. Dixon Nat. Bank. 327
Opinion of the Court.
contradicted as to all material portions of his testimony by
one witness of equal credibility and means of knowledge, then,
as a matter of law, the plaintiff has not proved his case."
This instruction was calculated to mislead the jury. The
plaintiff claimed that he was entitled to recover the $600,
which he was, unless the check drawn in favor of Wiswell
was in some way authorized or sanctioned by him. But as
to this part of the case the burden of proof did not rest on
the plaintiff. When he established that the money had been
deposited in the bank, the burden of proof rested upon the
bank to establish, by competent evidence, that the money
had been paid out by or under the authority of the plaintiff.
But the instruction ignores this rule, and informs the jury
that the burden of proof is on the plaintiff to prove his case.
The instruction is also liable to another objection. While
it was the duty of the jury, where there was a conflict be-
tween the evidence of two witnesses, as here, to weigh and
consider all facts and circumstances introduced in evidence,
in connection with the testimony of the two witnesses, and
from all the facts in evidence determine on which side the
weight of evidence may be, the jury were, in effect, directed,
as a matter of law, that where one witness testified to a cer-
tain fact, and was contradicted by another of equal means of
knowledge and credibility, no case was made out. Had there
been nothing before the jury save only the evidence of the
two witnesses, we are not prepared to say the instruction
would have been correct. It is an unsafe rule to announce
to a jury that there is no preponderance in such a case.
The jury are the sole judges of the weight to be given to all
evidence introduced for their consideration, and the instruc-
tions of the court should not infringe upon this rule, but
leave the jury free and untrammeled to determine for them-
selves the weight of all evidence, and also upon which side
of the case the evidence may preponderate.
Stiger et al. vt Bent.
Syllabus.
In defendant's fifth instruction the jury were informed that
it was the duty of DeLand to repudiate the act of Trueman
in signing his name to checks, within a reasonable time after
he was informed of the fact, and if he neglected to do so, he
ratified and confirmed the act of the bank in charging him,
in his account, with the amounts of such checks. The fact
that DeLand remained silent, and did nothing in the way
of asserting his rights, for about two years and a half after
he received from the bank a full statement of his account,
together with the checks which he now claims were unauthor-
ized, may be regarded as a strong circumstance for the con-
sideration of the jury, tending to establish that the giving of
the checks was authorized by him; yet we are not prepared
to hold that such conduct on his part should be regarded as
a ratification and confirmation of such an unauthorized act,
if it was unauthorized. We are aware of no authority which
carries the doctrine of ratification of an unauthorized act to
the extent that does the instruction. This instruction, and
several others announcing the same rule, were calculated to
mislead the jury, and should not have been given.
The judgment will be reversed and the cause remanded.
Judgment reversed,
Isaac Z. Stiger et al.
v.
Lucinda G. Bent.
Filed at Springfield September 27, 1884.
1. Usury — who may avail of the defence. A party not injuriously
affected by an usurious transaction, is not allowed to complain or take ad-
vantage of the usury. So if a party sells land subject to a mortgage thereon,
which is given to secure a debt, with usury reserved, and the purchaser
assumes the payment of the debt as a part of the purchase money, such pur-
chaser or those claiming under him can not interpose the defence of usuiy to
a bill to foreclose the mortgage.
Stiger et al. v. Bent. 329
Syllabus.
2. Parties — on bill to foreclose — wife of the debtor, after sale by the
mortgagor. On bill to foreclose a mortgage given by a husband and wife to
secure the note of the former, after they have sold and conveyed the mort-
gaged premises, the purchaser having assumed payment of the mortgage
debt as a part of the purchase price, the wife of the mortgagor, having no
interest in the matter, is not a necessary party, and no decree could be had
against her if made a party.
3. Same — as to administrator of a remote grantee of the mortgagor —
liability of such grantee in respect to incumbrance assumed by his grantor.
A mortgagor conveyed the mortgaged premises to one who assumed payment
of the mortgage debt as a part of the purchase price, and he conveyed the
same to another, who, out of the purchase money, paid the amount due on
the mortgage, to the trustee named in the instrument, who had no right to
receive the same, and wrongfully entered satisfaction of the trust deed on
the record. It was held, on bill by the holder of the note secured to fore-
close the trust deed, that the administrator of the last grantee was not a
necessary party, for the reason that the estate he represented was under no
liability for the payment of the mortgage debt.
4. Administration of estates — payment of prior incumbrance on
land purchased by the intestate. Where a person acquires land subject to
an incumbrance for the debt of a prior owner, and dies, his administrator is
not authorized by law to pay such debt or incur expense on account of it.
5. Mortgage— deed of trust— assignment of the debt—rights of the
assignee as respects the security. In equity a deed of trust is but an inci-
dent to the debt it secures, and will pass with an assignment of the debt to
the holder.
6. Same— unauthorized entry of satisfaction by trustee — of its effect
upon the rights of parties and purchasers. An entry of satisfaction of a
deed of trust by the trustee when the indebtedness secured by it has not
been paid, and the act is not authorized by the holder of the indebtedness,
will have no effect upon the deed of trust as between the original parties,
or as to subsequent purchasers with notice.
7. Same— /o reclosure without setting aside an entry of satisfaction
wrongfully entered. Where a trustee in a deed of trust, without the authority
of the holder of the note thereby secured, accepts payment, and enters sat-
isfaction on the record, it will not be necessary, on bill to foreclose the trust
deed, for a formal order setting aside the entry of satisfaction before a decree
of foreclosure. If such entry ought to be set aside, it may in equity be treated
as if never having been made, although at law the rule may be different.
8. Same — notice to purchaser of the want of authority in the trustee to
accept payment of the debt. Where a trustee enters satisfaction of a trust
deed duly recorded, in consequence of a negotiation for the purchase of the
land, and for the purpose of consummating the sale, and accepts payment of
the amount of the debt secured from such purchaser without producing and
330 Stiger et al. v. Bent.
Syllabus.
cancelling the note, and without authority from the holder thereof, the pur-
chaser can not be said to have purchased without notice of the rights of the
holder of the note.
9. Same — inference as to trustee's authority to receive payment of a
note. No authority in a trustee in a trust deed to collect the principal debt
secured, and to enter satisfaction on the record of the trust deed, can be in-
ferred merely from the fact that the money was borrowed of the holder of
the note through a firm of brokers of which the trustee was a member, and
that payments of interest on the note had been made to him before.
10. Same — production of the note secured — as evidence of non-payment.
The production of a promissory note secured by a trust deed, on the hearing
of a bill to foreclose, raises a prima facie presumption that it has not been
paid, and is still lawfully belonging to the complainant.
11. Payment to an agent — burden of proof to show agent's authority.
Where an agent has the possession of a promissory note after due, it may be
inferred that he has authority to receive payment of it; but the burden is on
the debtor who makes payment to the agent relying upon such inference, to
show that the note was in his possession when the payment was made, and
the fact that the note is neither surrendered nor offered to be surrendered,
affords evidence the agent did not have it.
12. Purchaser — of his right to remove a prior incumbrance — and of
other resulting rights — subrogation. The purchaser of land subject to a
prior incumbrance has the right to pay off the debt and thus relieve his land,
and to receive the note evidencing the debt, for his own protection; and if
such payment is not made under a previous contract with the party owing the
same, the party so paying is entitled to be subrogated to all the rights of the
holder of the indebtedness.
13. If payment of a note is made by one, of the note of another, pursuant
to a contract that he shall pay the same, the party paying may be regarded as
the agent of the debtor, and as such is entitled to receive and hold the note
as an evidence of his having made payment, as well as for his own protection.
14. Laches — effect of delay in giving notice of mortgagee's right, to a
purchaser. The failure of the holder of a note secured by deed of trust, to
give prompt notice to a subsequent purchaser of the land, making payment
to the trustee and procuring his release of the trust deed, of the want of
authority in the trustee to receive payment and make the release, will not bar
the holder's right to a foreclosure, when it does not appear that the delay in
giving the notice has worked an injury to the purchaser so paying the trustee.
15. Same — in equity — within the statutory period of limitation. A court
of equity applies the doctrine of laches in denial of relief sought, when the
statutory period of limitation has not expired, only when, from all the cir-
cumstances in evidence, to grant the relief to which the complainant would
otherwise be entitled will presumptively be inequitable and unjust to the
defendants because of the delay.
Stiger et al. v. Bent. 331
Brief for the Appellants.
16. Same — in the particular case. A purchaser of land mortgaged by a
former owner was unwilling to conclude the purchase without a satisfaction
or release of the incumbrance, when the trustee, without having the note
secured or authority from the holder, accepted payment of the debt, and
made an entry of satisfaction upon the record of the trust deed, and con-
verted the money paid, to his own use, and failed. In 1876 the holder of the
note learned of the fact of such satisfaction, when he placed his note in the
hands of attorneys for collection, giving no notice to the purchaser. Suit
was not brought until in 1880, during which time the purchaser had died,
giving by will the land to his wife for life, and directing that at her death it
be sold, and of the proceeds $1500 be paid to a grand-son, and the residue
be equally divided among his sons and daughters. On the hearing, the court
decreed a foreclosure against all the defendants except the widow and grand-
son, whose interests were protected, by reason of the delay in filing the bill.
On appeal by some of the residuary legatees, the decree was affirmed, as it
did not appear that they were injuriously affected by the delay.
17. Witness — competency of party against legatees and devisees. On
a bill to foreclose a mortgage on land of a deceased subsequent purchaser
from the mortgagor, against his legatees and devisees, the complainant is not
a competent witness in his own behalf against those defending as legatees or
devisees.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of
McLean county ; the Hon. Owen T. Beeves, Judge, presiding.
Mr. M. W. Packard, for the appellants :
Without setting aside the satisfaction of the trust deed, no
foreclosure should have been had.
Louisa Arbogast being the owner of the land when the
trust deed was given, was a necessary party to the bill ; and
so was the administrator de bonis non of Stiger. McCall v.
Lesher, 2 Gilm. 47; Winkelman v. Riser, 27 111. 21.
There was usury in the transaction, which the court below
ignored. Payne v. Newcomb, 100 111. 611.
The entry of satisfaction of the trust deed made a prima
facie case that the debt was paid, and shifted the burden of
proof upon appellee to -show it had not in fact been paid.
Fleming v. Parry, 12 -Harr. 47; Voiles Admx. v. American
Iron Mountain Co. 27 Mo. 455 ; Harrison v. Jolinson, 18 N. J.
332 Stiger et al. v. Bent.
Brief for the Appellee.
Eq. 420 ; Freeholders v. Thomas, 5 id. 39; Allard v. Lane,
16 Maine, 1.
Davis was held out as an agent of appellee by allowing
him to collect ,the interest coupons, and to extend the time
of payment, and by entrusting him with the trust deed.
Silence of the principal after notice of the acts of one
assuming to act as his agent, may be sufficient evidence of a
ratification of his acts. Frothingham v. Haley, 3 Mass. 70 ;
Shaw v. Nudd, 8 Pick. 9; Thayer v. White, 12 Mete. 343;
Foster v. Rockwell, 104 Mass. 167; Johnson v. Jones, 4 Barb.
369 ; Williams v. Merritt, 23 111. 623 ; 1 Livermore on Agency,
396; 2 Kent's Commentaries, 614; Barbour v. Mortgage Co.
102 111. 123 ; Martin v. Judd, 60 id. 78 ; Booth v. Wiley, 102
id. 84; Ward v. Williams, 26 id. 451; Searing v. Butler, 69
id. 575; Story' on Agency, sees. 253, 255; 2 Greenleaf on
Evidence, sec. 67.
Appellee should have repudiated Davis' act at once, and
notified Stiger of his want of authority, if such was the fact,
so as to enable him to secure himself.
Counsel also set up the ladies in bringing suit, as a bar to
equitable relief, besides making various other points.
Mr. Ira J. Bloomfield, for the appellee :
The fact that Larrimore and Davis collected the install-
ments of interest, did not authorize them to collect the prin-
cipal, nor justify the parties in paying over the money to
Davis. Cooley v. Willard, 34 111. 68.
Biggs, by assuming this indebtedness, and agreeing to pay
it as a part of the purchase money when he bought the land,
thereby became the principal upon that note, and was guilty
of gross negligence in paying the money and not taking up
the note. Keohane v. Smith, 97 111. 156.
Davis did not profess to act as agent for appellee in collecting
this money, but claimed it in his own right, and in that way,
through the gross negligence of the parties, defrauded them.
Stiger et al. v. Bent. 333
Opinion of the Court.
Appellants are not in a position to set up usury. Besides,
there was no usury in this transaction. By the agreed evi-
dence appellee "never received anything above ten per cent,
in any way." Kihlholz v. Wolf , 103 111. 362.
Mr. Chief Justice Scholfield delivered the opinion of the
Court :
On the 16th of September, 1868, William B. Arbogast, and
Louisa, his wife, to secure the payment of his promissory
notes to Lucincla G. Bent, of that date, — namely, one for
$1100, payable three years after date, with interest thereon
at the rate of ten per cent per annum after due, and six
coupon notes, of $55, each, for the interest on the amount
secured by that note before maturity, payable, respectively,
the first, one day thereafter, and the others, consecutively, one
every six months, — conveyed a certain tract of land owned by
her, in McLean county, to Reuben L. Davis, as trustee, with
usual power of sale on default of payment, and the deed was
duly recorded in apt time. On the 29th of September, 1869,
they sold the same tract to A. E. Biggs, subject to the deed
of trust, and executed a deed accordingly. On the 29th of
August, 1873, Biggs contracted with Abraham Stiger to sell
the land to him. At that time the interest had all been paid,
but the principal note for $1100 was still unpaid. Stiger re-
fused to purchase unless he could pay off the trust deed, and
thereupon they applied to Davis, who said the deed was in his
name, and that he could release it, and would do so on receipt
of the amount due. Stiger thereupon paid him the amount
due on the principal note, and Davis then entered upon the
margin of the record of the deed of trust the following :
"State of Illinois, >
/ ss
McLean County. )
"I hereby certify that the note described in this trust deed
is satisfied in full, and the land therein described is hereby
released from the lien thereof.
B. L. Davis, Trustee:'
Stiger et al. v. Bent.
Opinion of the Court.
And afterwards, on the same day, Stiger paid Biggs the
balance of the purchase money agreed upon to be paid by
him, and Biggs executed and delivered to Stiger a warranty
deed for the land. The promissory note secured by the deed
of trust was not surrendered to Stiger, nor was it shown to
him by Davis, nor is it proved to have been in his possession
at the time. Lucinda G. Bent knew nothing of the sale to
Stiger, and the entry of satisfaction on the record of the deed
of trust, at the time, nor until the spring of 1876, when she
was informed thereof by Davis. Davis neglected to pay the
money over to Mrs. Bent, and converted it to his own use. On
the day she was informed of the sale to Stiger and of Davis'
conduct in connection therewith, or within a few days there-
after, Mrs. Bent placed the note in the hands of her attorney
for collection, but he delayed bringing suit thereon until the
present bill was filed, on the pretence that he was awaiting a
decision in certain suits then pending, in which kindred ques-
tions were involved. Abraham Stiger, after making his last
will and testament, died. The will was properly proven, and
admitted to probate on the 25th of May, 1878. Among other
things he thereby devised this tract of land to his wife, Judith
Stiger, during her natural life ; and he further thereby de-
vised, that after the death of his wife the land should be
sold, and $1500* of the proceeds of such sale should be paid
to his grand-son, John W. Stiger. He directed that the
residue of his estate should be equally divided between his
sons and daughters therein named. Executors are named
in the will, who, it is shown, afterwards died, and then Jesse
D. Enlow was appointed, by the proper court, administrator
de bonis non, with the will annexed.
This bill was filed by Lucinda G. Bent, on the 9th of April,
1880, to foreclose the deed of trust. William B. Arbogast,
Judith Stiger, John W. Stiger, Elmira M. Swope, Jane M.
Kent, Celia A. Weitzel, William A. Stiger and Isaac Z. Sti-
ger, are, by the bill as amended, made defendants. Answers
Stiger et at. v. Bent. 335
Opin'on of the Court.
were filed by Judith Stiger, Elmira M. Swope, Jane M. Kent,
William A. Stiger and Isaac Z. Stiger. John W. Stiger, being
a minor, answered by his guardian ad litem. Subsequently,
by leave of court, Eeuben L. Davis and A. E. Biggs were
made defendants. Decree by default was rendered against
William B. Arbogast, Eeuben L. Davis and A. E. Biggs, and
the cause was then referred to the master in chancery to take
and report proofs. On final hearing, the court decreed that
the trust deed should be foreclosed as to all the defendants
except Judith Stiger and John W. Stiger, but as to them the
decree was, that the complainant, by reason of delay in com-
mencing the suit after notice of the acts of her trustee, waived
her right to foreclose, and hence that the life estate of the
one and the legacy of $1500 to the other are preferred by the
decree to the rights of the complainant. In all other respects
it was decreed the equities are in favor of the complainant.
This decree, on appeal to the Appellate Court for the Third
District, was affirmed, and that affirmance is now assailed
by this appeal, which is prosecuted by Isaac Z. Stiger and
Jane M. Kent.
A point made in argument that the decree below was, even
upon appellee's theory, for too large an amount, is put out
of the case by the remittitur in the court below, and therefore
demands no further notice.
The question of usury does not properly arise upon this
record, although it is discussed by counsel in argument. As
has been stated, Arbogast, the original debtor, and in whose
note alone is usury, if anywhere in the transactions involved,
sold to Biggs, and Biggs sold to Stiger. Biggs undertook, as
a part of his contract with Arbogast, to pay off the indebted-
ness secured by the deed of trust, and Stiger, before receiving
his deed from Biggs, attempted to pay off that indebtedness,
and thought that he had done so. Both in the sale to Biggs
and that to Stiger, payment of the indebtedness secured by
the deed of trust constituted a part of the consideration for
336 Stiger et ah v. Bent.
Opinion of the Court.
executing the deed. It represented, pro tanto, so much pur-
chase money. As to each of them, then, and those standing
in their places, it is impossible that there can be any ques-
tion of usury. Arbogast makes no complaint of the decree
on the ground of usury, and it is not admissible that other
parties not affected by it can interpose that defence. Hen-
derson v. Bellew, 45 111. 322; Valentine v. Fish, id. 462; Pike
v. Crist, 62 id. 461 ; Maker v. Lanfrom, 86 id. 520.
Objection is taken to the decree because it does not appear
that Louisa Arbogast was before the court as a party. Very
clearly, she was not a necessary party. She was not a maker
of the note secured by the deed of trust, and she was in nowise
personally liable for its paymerft. When, therefore, she had
sold her land, subject to the deed of trust, it is not possible
that she could have been further interested in that deed.
She had then received all she could receive for her land, and
the question of the payment of the indebtedness concerned
only Biggs and those claiming under him, and the party
entitled to receive such payment. No decree was sought, or
could properly have been rendered, against her.
Objection is also urged because Jesse D. Enlow, the ad-
ministrator de bonis non, with the will annexed, of Abraham
Stiger, deceased, is not made a defendant. We can see no
reason why he shall be considered an indispensable party.
The liability of Abraham Stiger and those claiming under
him, is not personal, and no individual decree is sought, or
could be, under the facts, properly rendered against him or
them. At no time could he or they have been sued at law
on this indebtedness. The proceeding is simply to enforce
the indebtedness against the land. As to him and them the
indebtedness affects the land alone. If they choose to let the
land go, they are no further interested. If they desire to
protect the land from the lien, they may do so, but then that
will be to save the land, — not to discharge any personal obli-
gation. With them it is purely voluntary. The administrator
Stiger et al. v. Bent. 33'
Opinion of the Court.
is not authorized to pay such a debt or to incur expenses on
account of it. Smith v. McConnell, 17 111. 135 ; Phelps v.
Funkhouser, 39 id. 401 ; Cutter v. Thompson, 51 id. 390 ; Ben-
nett v. Whitman, 22 id. 448; Gridley v. Watson, 53 id. 186.
The real contest here is, whether the payment by Stiger to
Davis, and the entry of satisfaction by Davis on the record of
the deed of trust, released the land from the operation of that
deed, so far as Stiger and those claiming under him are con-
cerned. Since this is a proceeding in equity, there can be
no necessity for a formal decree setting aside the entry of
satisfaction. If that entry ought to be set aside, it may, in
equity, be disregarded, and treated as a nullity, although, at
law, the rale would be different.
On the hearing, the complainant produced her note in evi-
dence, and this raised a presumption that it was still unpaid
and lawfully hers. (Brinkley v. Going, Breese, Beecher's ed.
366 ; McConnel v. Hodson, 2 Gilm. 640 ; Thompson v. Hoag-
land, 65 111. 310; Curtiss v. Martin, 20 id. 557.) To over-
come that presumption the respondents gave in evidence and
relied upon the entry of satisfaction upon the record of the
deed of trust ; and in reply to this, complainant contends
that the satisfaction was entered without authority, and that
it is therefore of no effect. An entry of satisfaction of a trust
deed by the trustee, where the indebtedness secured by it has
not been paid, and the act is not authorized by the holder
of the indebtedness, has no effect upon the deed of trust as
between the original parties, nor as to subsequent purchasers
with notice. (Insurance Co. v. Eldridge, 102 U. S. 545.) It
is claimed here, however, that Stiger was not a purchaser
with notice, and upon the solution of this hinges the present
question.
Stiger's negotiation for the land commenced, as has been
seen, before the entry of satisfaction was made. The entry
was made in consequence of that negotiation, and to aid in
carrying it out. The record of the deed of trust informed
22—111 III.
338 Stiger et al. v. Bent.
Opinion of the Court.
him, before the entry was made, that Davis merely held the
title in trust to secure the payment of the promissory note,
and it also informed him that that note was not payable to
Davis, but that it was payable to Lucinda G. Bent, and that
it was negotiable by indorsement. The note, he knew, was
not surrendered or cancelled at the time, and the evidence
fails to show that it was then presented or in the possession
of Davis. It is true, Biggs, in one place in his evidence,
seems to intend to create an impression that the note was,
at the time, present in the possession of Davis, but on fur-
ther examination he shows that he did not himself see the
note, and no one else testifies to having seen it at that time.
In equity, the deed of trust is but an incident to the debt,
and will pass with it for the benefit of the holder. Olds v.
Cummings, 31 111. 188; Sargent v. Howe, 21 id. 148.
There was evidence that the note was given for money bor-
rowed by Arbogast of Lucinda G. Bent, through a firm of
brokers of which Davis was a member, and that payments
of interest were made to Davis ; but no authority in him to
collect the principal can be inferred from this circumstance.
Cooleyv. Willard, 34 111. 68.
Where the agent has the possession of the promissory note
after clue, it may be inferred that he has authority to receive
payment of it, but the burthen is on the debtor who makes
payment to the agent, relying upon such inference, to show
that the promissory note was in his possession when the pay-
ment was made. (Williams v. Walker, 2 Sandf. Ch. 325;
Haines v. Pahlman, 25 N. J. Eq. 179 ; Smith v. Kidd, 68
N. Y. 130; Jones on Mortgages, 2d ed. sec. 964.) The fact
that the note was neither surrendered nor offered to be sur-
rendered, under the circumstances, is conclusive that he did
not then have it. Heuse v. Conisby, 1 Ch. Cases, 93, — and
see like ruling, in principle, by this court in Lucas et al. v.
Harris, 20 111. 169; Mayo v. Moore, 28 id. 428; Keohane v.
Smith et al. 97 id. 156.
Stiger et al. v. Bent. 339
Opinion of the Court.
But counsel seem to seriously contend that Stiger was not
entitled to the possession of this note after he had paid it off,
and, upon that ground, to excuse his not demanding its pro-
duction before making payment. Surely no one can, at this
day, seriously question that a party who buys a piece of land
incumbered by a mortgage given to secure the payment of a
promissory note, may pay off the note, and thus relieve his
land from the incumbrance. (See Sheldon on Subrogation,
sec. 28, et seq.) When the note is paid off, it needs the cita-
tion of no authorities to prove that the payee or assignee
of the note is no longer entitled to its possession. Having
received payment, the authority to make the payment, so far
as he is concerned, is admitted, and there can be no conceiv-
able purpose for which the payee or assignee of the note is
then longer entitled to retain its possession. If the payment
is made without any previous contract between the party
whose duty it is to pay and the party paying, solely to pro-
tect the title of the latter against the incumbrance of the
debt, the latter is, upon well settled principles, entitled to be
subrogated to the rights of the previous holder of the indebt-
edness, and to that end to the possession of all papers relating
thereto. (See Sheldon on Subrogation, ut supra; 1 Jones on
Mortgages, 2d ed. sec. 874.) If the payment is made pur-
suant to a previous contract between the party whose duty it
is to pay and the party paying, the latter may be regarded
as the agent of the former, and hence entitled to receive and
hold the evidence of indebtedness, after payment, for his
benefit, as well as a voucher for his own protection. Arbo-
gast, by selling the land to Biggs subject to the trust deed,
authorized Biggs, by necessary implication, to pay off and
take up the note ; and Biggs, by selling the land to Stiger, and
accepting Stiger's payment of the amount secured by the trust
deed as a payment of so much purchase money, it must, on
like principle, be implied, conferred the same authority upon
him. If, therefore, Stiger had paid off the note to the party
310 Stiger et at. v. Bent.
Opinion of the Court.
entitled to receive payment, he would, as against that party,
have been entitled to the possession of the note as a voucher
for the payment of that much purchase money, and to have
had it cancelled as evidence of the existence of a lien against
his land, although, as between himself and Arbogast, the
latter might have been entitled to the possession of the note
after its cancellation. There can be no reasonable pretence
that the trustee is entitled to hold the note after its payment,
for no duty is enjoined upon him by the deed in that respect.
In Barbour v. Mortgage Co. et al. 102 111. 121, we held that
where a deed of trust given to secure a debt, was released
by the trustee without the authority of the party secured,
and he had never sanctioned or ratified the act, a subsequent
incumbrancer could not obtain a prior lien : but that if the
party secured by the deed of trust authorized the trustee to
release the lien, or if he failed at once to repudiate the act
of the trustee in making the release without authority, when
informed of the fact, and lay by until third persons had ad-
vanced large sums of money upon the faith of what his agent
had done, he would be estopped from repudiating the act as
authorized, — and counsel insist that ruling is applicable to
the present case. The only persons that can, in any sense,
be claimed to have been here affected adversely by the delay
in bringing this suit, are Mrs. Judith Stiger and John W.
Stiger. It may be, if the complainant had promptly given
notice of her rights when informed of the payment to Davis,
Stiger would, by his will, have made other and equally ade-
quate provision for these parties, and the decree of the circuit
court proceeds upon that ground, and protects their interests.
But it is impossible that, had she given such notice, Stiger
could have made better or more ample provision for his re-
siduary legatees than he did, for the recognition by him of
the rights of Mrs. Bent would have reduced the residuum
of his estate by whatever amount he would, in consequence,
have given Judith Stiger and John W. Stiger in lieu of the
Stiger et al. v. Bent. 341
Opinion of the Court.
specific devises in their favor in this land, and so they now,
doubtless, receive more than they would have received in that
contingency, but in any event they receive as much.
It is argued, if complainant had promptly notified Stiger
of her rights he might have taken steps that his representa-
tives could not, after this suit was commenced, take, to pro-
tect his estate against loss. There is no evidence that Davis
was less able to respond for the amount paid to him by Stiger
when this suit was brought than he was in the spring of
1876, when Mrs. Bent was first informed of the payment to
him, and no statute of limitations barred a suit against him.
The only evidence in regard to his insolvent condition is, that
he had failed in January, 1876, — the January preceding the
communication of the information to her in the spring. And
since the fact is unquestioned that Davis did not surrender
the note to Stiger, and that Mrs. Bent was not present, and
was ignorant of the transaction, it is not apparent that any
matter of evidence important to the interests of the legatees
is lost by the death of Stiger.
The objection that Mrs. Bent was not called and exam-
ined as a witness in her own behalf, is answered by the fact
that she was incompetent under the statute, the respondents
appealing being legatees, and defending as such. The re-
spondents might have introduced her as a witness, but they
did not offer to do so. Kev.' Stat. 1874, chap. 51, sec. 2.
There is no evidence in the record proving that by reason
of the peculiar location or condition of this land, or the char-
acter and situation of the improvements thereon, or of any
circumstances affecting it, mere delay in prosecuting com-
plainant's suit may probably have produced an inequitable
loss or injury to the residuary legatees therein, and this court
is unable to perceive, of its own knowledge, how or why such
a result should likely follow. A court of equity applies the
doctrine of laches in denial of relief prayed, where the statu-
tory period of limitations has not expired, only where, from
;42 Kilgour v. Drainage Commissioners.
Syllabus.
all the circumstances in evidence, to grant the relief to which
the complainant would otherwise be entitled, will, presump-
tively, be inequitable and unjust, because of the delay, to the
defendants.
The decree is affirmed. ~
Decree ajjirmed.
Mr. Justice Scott : I do not concur in this opinion.
William M. Kilgour
v.
Drainage Commissioners.
Filed at Ottawa September 27, 1884. *>
1. Appeal — in suit on appeal bond in special assessment proceedings — ■
directly from trial court. An appeal bond given on an appeal to three
supervisors from a confirmation of a special assessment for drainage, being
but incidental to the assessment it is given to secure, an appeal from a judg-
ment in an action on such bond lies directly from the trial court to this court,
the same as if the suit had been on the assessment itself.
2. Measure of damages — in suit on appeal bond — in the matter of a
special assessment. In an action upon an appeal bond given on appeal from
the confirmation of a special assessment, the measure of recovery is the
amount of the assessment, and nothing more, except the costs.
3. Former recovery — as to recovery upon an appeal bond given in
special assessment proceedings — and judgment upon the assessment itself.
A recovery of the amount of a special assessment in an action upon an appeal
bond given on an appeal from the assessment, is a bar to any other proceed-
ing to collect the assessment. So a recovery of the amount of the assessment
by judgment against the land assessed, and its collection, might be pleaded
in bar of a suit on the appeal bond.
4. Pleading — nil debet to suit on appeal bond. Nil debet is not a
good plea in an action on an appeal bond.
5. Same — plea to action on appeal bond in special assessment proceed-
ings. In an action on an appeal bond conditioned for the payment of a
special assessment in case the same is affirmed by the three supervisors to
whom the appeal was taken, the defendant pleaded that the assessment was
Kilgour v. Drainage Commissioners. 343
Syllabus.
afterwards set aside by the county court, and so remains set aside: Held,
that the plea was bad, in not showing any appeal from the affirmance by the
supervisors, to the county court, or any other fact showing jurisdiction in
that court to set aside the assessment.
6. And in such an action a plea that the county court, on application for
judgment against the land assessed, refused judgment, fails to answer the
breach of a failure to pay the assessment on affirmance. The failure of the
county court to enforce the lien of the assessment against the land, is no
answer to the breach.
7. Notice — as to time and place of confirming special assessment —
waiver by appeal. And in such action a plea showing a want of notice of
the time and place of the meeting of the commissioners at which they con-
firmed the assessment, presents no defence. The appeal cured any want of
notice of the proceedings, and gave the party an opportunity of being heard
on the merits.
8. Cumulative remedy — in respect to collection of special assessment.
The remedy given by law to drainage commissioners of a town, by action on
the bond of a party appealing from the confirmation of a special assessment
against his land, where the same is affirmed, does not depend upon their first
enforcing the lien of the assessment against his land. The remedy against
the land is merely cumulative, and a failure to pursue it will not avoid the
personal obligation to pay, created by the bond.
9. Drainage law — extent of legislative power under the constitutional
amendment of 1878. Under the amendment of the constitution (sec. 31,
art. 4,) adopted in November, 1878, the legislature is expressly empowered
to "provide for the organization of drainage districts, and vest the corporate
authorities thereof with power to construct and maintain levees, drains and
ditches," etc. This grant of power being unrestricted in terms, carries with
it, by implication, all other powers necessary to make the general grant effect-
ive to accomplish the result intended. As to the mode in which the power
is to be exercised, the legislature is left the sole judge.
10. Same — act of 1879 — its constitutionality , as assuming power to ap-
point officers. Section 71 of the Drainage law of 1879, which provides that
the commissioners of highways of a town shall also be drainage commission-
ers of the township, is not invalid, as an assumption of an appointing power
which the legislature does not possess, but is a valid enactment.
11. Imposing by law new duties upon officers merely statutory, already
chosen, is by no means the appointment or selection of such officers by the
legislative department.
12. Same— drainage assessment as distinguished from a tax. The pro-
visions of the constitution in relation to taxes have no application to the
imposition of the burdens imposed by this Drainage act. These assessments
are not taxes.
344 Kilgour v. Drainage Commissioners.
Statement of the case.
Appeal from the County Court of Whiteside county ; the
Hon. William Lane, Judge, presiding.
This is an action of debt, brought by the drainage commis-
sioners of Montmorency township, Whiteside county, against
William M. Kilgour, upon an appeal bond given by him on
an appeal to three supervisors from an assessment of benefits
upon his land for a drain, under the township drainage stat-
ute of this State, in force July 1, 1879.
The declaration alleges the execution and delivery of the
bond in perfecting an appeal from an assessment of the com-
missioners, to three supervisors, and sets out in one of the
counts the bond in hcec verba. This bond recites that the
commissioners had made an assessment on appellant's lands
(describing them) for the sum of $440 ; that such assessment
had been confirmed by the commissioners, and that appellant
had taken an appeal from their decision, to three supervisors
of the county, and was conditioned as follows :
"Now, therefore, if the said W. M. Kilgour shall pay or
cause to be paid to the said drainage commissioners the
amount of said assessment, and all costs of this appeal in
case said assessment shall be affirmed by said supervisors,
then this obligation to be void, otherwise to remain in full
force and virtue."
The declaration alleges the affirmance of such assessment
by the supervisors ; that such affirmance was not appealed
from, but remained in full force, and that the appellant had
not paid the amount of the assessment recited in the bond.
Appellant filed various pleas, to all of which, except that of
non est factum, the court sustained demurrers, and appellant
electing to stand by his pleas, the cause was brought to trial
on the issue upon the plea of non est factum, and judgment
rendered in favor of appellees, from which this appeal is
prosecuted.
Kilgour v. Drainage Commissioners. 345
Brief for the Appellant.
Messrs. Manahan & Ward, and Mr. W. M. Kilgour, for
the appellant :
Section 71 of the Drainage law attempts to make drainage
commissioners out of highway commissioners already elected,
and is an assumption of an appointing power the legislature
does not possess under our system of government. If an
action for misfeasance or nonfeasance in office, for a wrong-
ful or fraudulent assessment, were brought against these
parties, would not the plea that they were never elected as
assessors, and never appointed as such by any competent
authority, and never qualified as such assessors, be a good
plea ? We insist it would.
The third and fourth pleas specially set forth that the
assessment, which is the condition mentioned in the bond,
was afterwards by the county court set aside and for nothing
held, and we insist that the assessment, whether legal or not,
having been set aside by competent authority, there is no
reason to urge for the payment of the penalty in the bond.
The amendment to the constitution of 1S70 is as follows:
"Sec. 31. The General Assembly may pass laws permit-
ting the owners of lands to construct drains, ditches and
levees, for agricultural, sanitary or mining purposes, across
the lands of others, and provide for the organization of drain-
age districts, and vest the corporate authorities thereof with
power to construct and maintain levees, drains and ditches,
and to keep in repair all drains, ditches and levees heretofore
constructed under the laws of this State, by special assess-
ments upon the property benefited thereby."
This section considered as standing alone, might be urged
as giving the authority claimed ; but with it must be consid-
ered and construed section 9, of article 9, entitled "Kevenue, "
which is still in force as part of the constitution, and which
provides that "for all other corporate purposes all municipal
corporations may be vested with authority to assess and col-
lect taxes, but such taxes shall be uniform in respect to per-
346 Kilgour v. Drainage Commissioners.
Brief for the Appellees.
sons and property within the jurisdiction of the body imposing
the same." This section is still in force as part of the con-
stitution, and as such qualifies section 31, under the head
"Miscellaneous," which is the amendment, and requires that
the taxes in the jurisdiction shall be uniform. To comply
with this provision of section 9, article 9, the assessment of
these drainage commissioners would have to be reviewed by
the State Board of Equalization, and no provision is made
in the Drainage act for that purpose.
Messrs. Bennett & Green, for the appellees :
This suit not relating to the revenue, but being simply an
action upon a contract, no appeal lies directly to this court.
The plea of nil debet is clearly bad when the suit is on an
appeal bond, as has been held by this court. King v. Ram-
sey, 13 111. 619; Mix v. The People, SQ id. 329; Caldwell v.
Richmond, 64 id. 30.
The third plea is plainly insufficient. The pleader does
not set forth with precision how the court obtained jurisdic-
tion to act upon the assessment, or in what suit or proceed-
ing such assessment was set aside, — whether the same was
at law, in chancery or probate, or who were the parties to it,
or whether there were any parties at all. And besides, the
plea is not a full answer to the undertaking of appellant, as
set forth in the bond. Qidncy Coal Co. v. Hood, 77 111. 68 ;
Mix v. The People, 86 id. 330.
The fifth plea states with more precision the defence at-
tempted to be set up in the fourth. It sets up substantially
a refusal of the county court, when application was made to
enforce the lien of this assessment upon the lands by the
usual tax sale, to render judgment against these lands, and
order them sold. There are no facts averred in the plea
showing that the court had any jurisdiction to act upon the
assessment, or the action of the supervisors, in any other
way than refusing judgment to enforce the lien upon the
KiLGomt v. Drainage Commissioners. 347
Brief for the Appellees.
lands. This plea does not answer the breach assigned upon
the bond. "The condition of the bond is to pay the amount
of the assessment in case it shall be affirmed by the super-
visors ; " and it is no answer to such breach to aver that the
county court refused to render judgment against the lands to
enforce the lien of the assessment upon them. The commis-
sioners had a right to rely upon the bond as a security for
the payment of the assessment. The remedy by a sale of
the land at tax sale was, after the giving of the bond, merely
cumulative, and in no way interfered with the personal obli-
gation on the bond. The People v. Stahl, 101 111. 346.
The fifth plea is plainly bad, for the reason that the bond
recites the assessment and its confirmation. The demurrer
admits this, and appellant is estopped thereby. Arnott v.
Friel, 50 111. 174 ; Courson v. Browning, 78 id. 210 ; Smith
v. Whittaker, 11 id. 417; Herrick v. Swartwout, 72 id. 340;
Albee v. The People, 22 id. 533 ; Crisman v. Mathias, 1 Scam.
148.
The sixth plea avers want of notice of meeting of the com-
missioners. This plea is bad, because it is no answer to the
breach assigned in the declaration ; is defective in form, the
same being double, and wanting in precision ; and further-
more, the want of notice is waived by the appearance of ap-
pellant, and his appeal. (Hohmann v. Eiterman, 83 111. 92 ;
Gilkerson v. Scott, 76 id. 509.) It has also been adjudicated,
and can not be raised collaterally. The People ex vel. v. Bris-
lin, 80 111. 423 ; Andrews v. The People ex rel. 83 id. 529.
The seventh plea is intended to present a constitutional
question as to the power of the legislature to enact that the
highway commissioners of a township should also be drain-
age commissioners. There is no prohibition in the constitu-
tion against conferring other powers and duties upon officers
already chosen. Such instances are numerous. But by mak-
ing the bond to these commissioners by their corporate name,
appellant is estopped to dispute their corporate capacity.
348 Kilgour v. Drainage Commissioners.
Opinion of the Court.
Mr. Justice Dickey delivered the opinion of the Court :
A preliminary question is presented by the motion of appel-
lees— whether an appeal lies in this case directly to this court.
It is insisted that the matters involved in this action do not
relate to the revenue, but that the enforcement of a contract
is all that is embraced in the suit. We can not accede to
this view. While it is true that the action is brought upon
appellant's appeal bond given on his appeal from a special
assessment upon his land, yet the sum actually recoverable
in this form of action is the amount of the assessment, and
nothing more, except the costs. The appeal bond is but in-
cidental or collateral to the assessment it was given to secure.
It matters not whether the money is collected on the assess-
ment or on the bond. The character of the fund will be the
same in either case, and becomes a part of the funds of the
corporation devoted to certain public purposes, as much so as
a school or road tax. There can be no doubt that a recovery
of the assessment in this case by the sale of the lands assessed
would be a bar to a suit on the appeal bond, the same as a
discharge of the bond by payment would bar an application
for judgment on the assessment.
The demurrer was properly sustained to the plea of nil
debet. Such a plea is bad in an action on an appeal bond.
King et al. v. Ramsey, 13 111. 619; Caldwell v. Richmond, 64
id. 30 ; Mix v. The People, 86 id. 329.
The third plea is, "that he (defendant) ought not to be
charged with the said debt by virtue of the supposed writing
obligatory, because he says that the said assessment in said
declaration was afterwards, to-wit, etc., set aside by the county
court of said Whiteside county, and that said assessment since
has remained, and now is set aside, annulled, and for nothing
held," etc. This plea is no answer to the declaration. The
condition of the bond is the payment of the assessment in
case of its affirmance by the three supervisors to whom the
Kilgour v. Drainage Commissioners. 349
Opinion of the Court.
appeal was taken, and the plea fails to show any appeal from
the supervisors to the county court, so as to authorize that
court to set aside the assessment, nor does the plea in any way
show jurisdiction in the county court to act in this regard.
The fourth plea fails to answer the breach alleged, — a
failure to pay the assessment on its affirmance by the super-
visors. The refusal of the county court to render judgment
against the land to enforce the lien of the assessment, is no
answer to the breach. A suit may be maintained upon an
appeal bond given on appeal from a judgment against land
for taxes, for a breach of the condition to prosecute the appeal
with effect, notwithstanding the remedy against the land re-
mains unexhausted. In such case the obligee may pursue
either remedy he chooses. [Mix et at. v. The People, use, etc.
86 111. 329.) The remedy against the land is merely cumu-
lative, and a failure to pursue it does not avoid the personal
obligation to pay, created by the bond. The People v. Stahl,
101 111. 316.
The fifth plea is, that the defendant had no notice of the
time and place of the meeting of the commissioners when and
where they confirmed such assessment, and did not appear.
The sixth plea avers want of notice of the meeting of the
commissioners. The appeal cured any want of notice of the
proceedings, and gave appellant a chance of being heard, and
a right to a trial on the merits. Hohmann v. Eiterman, 83
111. 92 ; Gilkerson v. Scott, 76 id. 509.
The seventh plea sets up that plaintiffs were elected com-
missioners of highways in and for the town of Montmorency,
before the said statute constituting them drainage commis-
sioners became a law, and that said plaintiffs have not been
elected or appointed such commissioners of highways since
the passage of said law ; that said plaintiffs were never elected
or appointed as such drainage commissioners, nor did they,
or any of them, ever take any other or further oath, or file
any other bond. This plea is intended to present the consti-
350 Kilgour v. Drainage Commissioners.
Opinion of the Court.
tutional question as to the power of the legislature to enact
that the highway commissioners of a township should also
be drainage commissioners of the township. It is contended
that section 71 of the Drainage law is invalid, as an assump-
tion of an appointing power which the legislature does not
possess. We do not think the constitutional objection to the
section is well taken, but, on the contrary, think it is a valid
enactment. Under the amendment of the constitution, (sec-
tion 31, article 4,) adopted in November, 1878, the legislature
is expressly empowered to "provide for the organization of
drainage districts, and vest the corporate authorities thereof
with power to construct and maintain levees, drains and
ditches," etc. This general grant of power being unrestricted
in terms, carries with it, by necessary implication, all other
powers necessary to make the general grant effective, and to
accomplish the results intended. As to the mode in which
this power is to be exercised, the legislature is left the sole
judge. Numerous instances might be referred to in which
the legislature has imposed new duties upon officers already
elected, where the duties of such officers are not fixed by the
constitution, and the constitutionality of such enactments
would seem to be unquestionable. Imposing by law new
duties upon officers merely statutory, already chosen, is by
no means the appointment or selection of such officers by the
legislative department. The provisions of the constitution in
relation to taxes have no application to the imposition of the
burdens imposed by this act. These assessments are not
taxes. It is a special regulation, whereby an owner is re-
quired to pay for benefits specially conferred upon his land.
The judgment of the court below is therefore affirmed.
Judgment affirmed.
Black v. W., St. L. & P. Ey. Co. 351
Syllabus.
Robert Black
v.
The Wabash, St. Louis and Pacific Railway Company.
Filed at Springfield. September 27, 1884.
1. Carries — reasonableness of special contract limiting liability. A
stipulation in a shipping contract, voluntarily and understanding^ entered
into by a shipper of live stock for transportation, that in consideration of a
reduced rate no claim for damages accruing to the shipper shall be allowed
or paid by the carrier, or sued for in any court, unless a claim for such loss
or damage shall be made in writing, verified by the affidavit of the shipper or
his agent, and delivered to the general freight agent of the carrier, at his office,
within five days from the time such stock is removed from the cars, will be
binding upon the shipper, and is not void as being contrary to any law or to
public policy.
2. Contract — executed in ignorance of its terms — when it is binding.
Where a party of mature years and sound mind, being able to read and write,
without any imposition or artifice to throw him off his guard, deliberately
signs a written agreement without informing himself of the nature of its
contents, he will nevertheless be bound by it, for the reason the law will not
permit him to allege, as a matter of defence, his ignorance of that which it
was his duty to know, particularly when the means of information are within
his immediate reach, and he neglects to avail himself of them.
3. In an action by the shipper of stock against a railway company to recover
damages for negligence and delay in transportation, and a special written or
printed contract is set up to defeat the action for a non-compliance with its
terms and conditions, the shipper will have the right to show the circum-
stances under which he executed the same, when he claims he was purposely
misled by the defendant's agent and induced to sign the same without having
time to examine the contents, under the fraudulent assurance that it was only
4. Evidence — latitude on cross-examination. In a suit against a rail-
way company as a carrier, to recover damages for a loss from negligence and
delay in the transportation of freight, a special contract of shipment was set
up in bar, which was executed in consideration of reduced rates, as was
claimed by the defendant, and which the plaintiff claimed was signed by him
under the fraudulent assurance it was only a pass, just as the train was start-
ing to leave, when he had no time to read the same. The defendant's station
agent was permitted to testify that $33.50 was the schedule rate per car for
the shipment of stock. On cross-examination the plaintiff asked him if the
company had ever received that amount for a car of freight between the same
352 Black v. W., St. L. & P. Ey. Co.
Syllabus.
points, and also this question: "Did you tell him (plaintiff) when he came
for the cars at $25, he would have to sign any contract relieving the company
from liability?" — to which the court sustained objections: Held, that under
the latitude of cross-examination both questions were clearly proper, and that
the court erred in ruling otherwise.
5. Same — res gestce. On the question whether a shipper's contract was
fairly and understandingly executed by the shipper, or whether he was in-
duced to sign the same without examination, under the false assurance of a
station agent that it was only a pass, the agent, on his examination in chief,
stated certain of his declarations to the shipper, made at the time and relat-
ing to the signing of the alleged contract. On cross-examination an objec-
tion was sustained to this question: "Did you tell Black (the shipper) what
it was when you had him sign it?" Held, that the court erred in its ruling,
and that everything that was said or done at the time by either of the parties
relating to the signing, was a part of the res gestae,, and was proper to be
elicited on cross-examination.
6. Same — of the party's right to have the whole of a conversation.
Where a party proves, by its agent, the declaration of the latter made at the
time of the signing of a contract, the validity of which was being questioned,
it is clearly the right of the other party, on cross-examination, to call out all
that was said at the same time on the same subject.
7. Same — in rebuttal. Where a special written contract is set up in de-
fence, the execution of which is claimed to have been fraudulently obtained,
and the defendant proves by his agent what was said and done at the time it
was signed, it is error to refuse to allow the plaintiff, in rebuttal, to give his
version of the same matters.
8. Same — on question whether a special contract was made for shipment.
Where it was a question whether a special contract for the transportation of
live stock was fairly and understandingly signed, or procured fraudulently,
the shipper was asked, "What, if anything, was said about that being a special
contract with you at that time?" and also, "Was this paper introduced in
evidence, in the contract you made to ship the stock by the railroad company
to Chicago?" — to both of which questions the court sustained objections:
Held, that the court erred in excluding the questions.
9. Same — parol evidence as to manner of execution of contract. Parol
evidence is admissible to impeach the validity of a written instrument. Such
evidence is not proper to change the terms of a written agreement, but the
circumstances under which its execution is procured may be shown, for the
purpose of showing whether the paper ever became a contract, or not. That
a contract exists must be shown by parol, and the proof of such existence
may be attacked by proof that the execution of the document is a nullity, as
having been procured by duress, or by fraud, etc.
10. Where a plaintiff contended that a verbal understanding between him
and a railroad station agent was the contract, and the only one, under which
Black v. W., St. L. & P. Ey. Co. 353
f Brief for the Appellant.
he made a shipment, and that an instrument signed by him and the agent
was executed on his part under the belief that it was a mere pass over the
road, and that belief was induced by the conduct and misrepresentation of
the agent, while the defendant insisted that the instrument was a valid and
binding agreement, affording the only evidence of the contract between it
and the plaintiff, it was held, that it was a matter of proof which theory was
correct, and that the only way of establishing the truth or falsity of either
hypothesis was by showing what passed between the parties.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of DeWitt
county; the Hon. George W. Herdman, Judge, presiding.
Messrs. Moore & Warner, for the appellant :
A common carrier can only make such contracts exempting
itself from responsibility as are reasonable in the eye of the
law ; and the reasonableness of each contract must depend
upon the circumstances of the case in which it is to be con-
strued. Lawson on Contracts of Carriers, sec. 29 ; Rice v.
Railway Co. 63 Mo. 314; Transportation Co. v. Corn forth, 3
Col. 2S0 ; Railroad Co. v. Lockwood, 17 Wall. 357.
The exemption clause in the contract is unreasonable, and
does not bar the action. Rice v. Railway Co. 63 Mo. 314;
Oxley v. Railway Co. 65 id. 629.
Appellee having received actual notice within a reasonable
time, and promised to investigate the claim, is estopped from
insisting on want of form or limitation of time. Rice v. Rail-
way Co. 63 Mo. 310 ; Oxley v. Raihvay Co. 65 id. 634; Noyes
v. Insurance Co. 4 Zabr. 447 ; Clark v. Insurance Co. 6 Cush.
342 ; Peacock v. Insurance Co. 1 Bosw. 338 ; Bartlett v. In-
surance Co. 46 Maine, 500 ; Risinger v. Cheney, 2 Gilm. 84.
A common carrier can not, by special contract or other-
wise, limit its common law liability for loss or damage occa-
sioned by the negligence of itself or its agents or employes.
1 Addison on Torts, (Wood's ed.) 716-731 ; 2 Wait's Actions
and Defences, 44-46 ; Wharton on Negligence, sec. 589 ;
Cooley on Torts, 640, 684, 685 ; Lawson on Contracts of
23—111 III.
354 Black v. W., St. L. & P. By. Co.
Brief for the Appellee. •
Carriers, chap. 2, p. 24 ; Railroad Co. v. Lockwood, 17 Wall.
357; Bank of Kentucky v. Express Co. 3 Otto, 174; Railroad
Co. v. Waters, 41 111. 73 ; Oppenheimer v. Express Co. 69 id.
62 ; Railroad Co. v. Wilcox, 84 id. 239 ; Boskowitz v. Express
Co. 93 id. 523 ; Express Co. v. A'oimte, 8 Wall. 342 ; For/c
County v. Railroad Co. 3 id. 107; Kuter v. Railroad Co. 1
Biss. 35; Manufacturing Co. v. Railroad Co. id. 377; Fuller
v. Talbot, 23 111. 357 ; Transportation Co. v. Neivhall, 24 id.
466 ; Railroad Co. v. Montgomery, 39 id. 335 ; Railroad Co.
v. Owens, 53 id. 391 ; Railroad Co. v. McClellan, 54 id. 58 ;
Railroad Co. v. /SV^a, 66 id. 471 ; Railroad Co. v. Saivyer, 69
id. 285; Railroad Co. v. Thompson, 71 id. 434; Transporta-
tion Co. v. Kahn, 76 id. 520 ; Railroad Co. v. Hamilton, id.
393 ; Railroad Co. v. Cmtis, 80 id. 324.
The trial court erred in refusing to let appellant prove that
this pretended contract was unfairly, if not fraudulently, ob-
tained ; that it was not the contract on which the shipment
was made ; in holding that the appellee would not be liable
for "actual" negligence; in modifying some of appellant's
instructions and refusing others, and in giving for appellee
the instructions it did ; and the Appellate Court erred in
affirming the judgment of the trial court.
Messrs. Brown & Kirby, for the appellee:
The clause of the contract by which appellant agreed to
give notice of any loss he might sustain, is reasonable and
valid. Railroad Co. v. Munson, 19 111. 136; Railway Co. v.
Wilcox, 84 id. 239 ; Despatch Co. v. Bolles, 80 id. 473 ; Ar-
nold v. Railroad Co. 83 id. 273 ; Hutchinson on Carriers,
sec. 218: Railroad Co. v. Black, 11 Bradw. 65; Express Co.
v. Caldwell, 21 Wall. 264 ; Lee v. Railroad Co. 5 H. & N.
867 ; Wharton on Negligence, sec. 587 ; Lewis v. Railroad
Co. 5 H. & N. 867; Rice v. Railway Co. 63 Mo. 314; Oxley
v. Railway Co. 65 id. 629; Wolf v. Telegraph Co. 62 Pa. St.
83 ; Young v. Telegraph Co. 34 N. Y. 390 ; York County v.
Black v. W., St. L. & P. Ry. Co. 355
Opinion of the Court.
Railway Co. 3 Wall. 107 ; Goggin v. Railway Co. 12 Kan. 416 ;
Bankord v. Railroad Co. 34 Md. 197; Insurance Co. v. Scam-
mon, 100 111. 644.
Appellant can not avoid the contract because he failed to
read it. Railroad Co. v. Hale, 2 Bradw. 160 ; Grace v. Adams,
100 Mass. 505.
The letters from the general freight agent do not show
a waiver of the right to have proper notice of the claim.
Lintner v. Millikin, 47 111. 178 ; White v. Martland, 71 id. 250 ;
Ogden v. Kirby, 79 id. 555 ; Jordan v. Easter, 2 Bradw. 73.
Mr. Justice Mulkey delivered the opinion of the Court :
This was an action on the case, brought by the appellant,
Robert Black, to the June term, 1882, of the DeWitt circuit
court, against the Wabash, St. Louis and Pacific Railway
Company, the appellee, to recover damages for alleged negli-
gence in the carriage and transportation of a lot of beef cattle
belonging to the appellant, from Midland City, in said De WTitt
county, to the Union Stock Yards, in Cook county, resulting,
as is claimed, in the loss of several head of the cattle, and
serious injury to the others. The cause was tried before the
court and a jury, resulting in a verdict and judgment for the
defendant. On appeal to the Appellate Court for the Third
District the judgment of the circuit court was affirmed, and
the case is now before us for review.
The errors assigned upon the record, and relied on for a
reversal, question the rulings of the trial court in the admis-
sion and exclusion of testimony, and in the giving, refusing
and modifying of instructions. In order to a proper under-
standing of the questions thus raised, it will be necessary to
advert, in a general way, to the leading facts in the case, as
well as to the opposing theories, upon which the case was tried.
The appellant, being a farmer and shipper of stock, in the
latter part of June, 1881, called on Cicero Lane, the station
356 Black v. W., St. L. & P. Ey. Co.
Opinion of the Court.
agent of appellee at Midland City, for the purpose of making
arrangements for shipping a lot of cattle and hogs from that
place to Chicago, over appellee's road. The agent informed
him that at present rates the cars would' cost him $33.50 per
car, (or, as appellant states it, $30 per car,) but at the same
time promised him he would try to get him better rates.
Accordingly, on the first of July, or thereabouts, the agent
informed him the company had made a lower rate, and that
he could then ship his stock at $25 per car. In pursuance
of this understanding, the appellant, on the 6th day of the
following month, loaded his stock, consisting of ninety-four
head of cattle and fifty-five head of hogs, in cars furnished
by appellee, then standing on its tracks at Midland City.
After the stock was loaded, and a short time before the train
moved off, Lane, the station agent, came to appellant and
told him he had better go to the office and sign his passes,
which he did. The passes referred to were, in fact, a written
agreement, in duplicate, between the company and appellant,
containing the terms and conditions upon which the stock
then in the cars was to be shipped, the same having already
been signed by Lane on behalf of the company. Appellant
testifies this agreement was signed by him in duplicate, on
presentation by the agent, without any knowledge of the real
character of its contents, and the evidence shows one copy
of it was retained by appellant and the other forwarded by
Lane to the general freight agent of the company at St. Louis.
As appellant claims, on the arrival of the train at Chicago,
and before he had an opportunity of examining the contract,
an agent of the company came round and took it up, and has
since had exclusive possession of it.
The ultimate question upon which this case hinges is,
whether appellant, under the circumstances, is concluded by
the provisions of the contract in question. The appellant,
in presenting the case to the trial court, simply showed the
time and place of the shipment of the stock, and the price
Black v. W., St. L. & P. Ey. Co. 357
Opinion of the Court.
to be paid for the cars used for that purpose, without devel-
oping the existence of the special contract. He then offered
testimony tending to show the loss and injury to the cattle
were occasioned by the negligence and delay of the company
in their transportation, and thereupon rested. To meet the
case thus made by appellant, appellee offered testimony tend-
ing to negative the charge of negligence on the part of the
company, and also put in evidence the special contract above
mentioned, which contains, among others, the following stipu-
lation :
"Tenth — In consideration of the rate aforesaid, it is farther
agreed that no claim for damages which may accrue to the
party of the second part under this contract, shall be allowed
or paid by the party of the first part, or sued for in any court
by the party of the second part, unless a claim for such loss
or damage shall be made in writing, verified by the affidavit
of the party of the second part, or his or their agent, and
delivered to the general freight agent of the party of the first
part, at his office in the city of St. Louis, within five (5) days
from the time said stock is removed from said cars."
It is conceded appellant failed to give notice to appellee's
general freight agent at the city of St. Louis, of the loss and
damage to the stock, within the time or in the manner required
by the above stipulation. It is claimed, however, by appel-
lant, first, that the stipulation in question is an unreasonable
attempt on the part of the company to limit its common law
liability, not warranted by public policy, and that for that
reason it is inoperative and void ; and second, that admitting
it to be prima facie valid, it is nevertheless, by reason of the
circumstances under which it was obtained, not binding upon
the appellant.
With respect to the first branch of the proposition we have
no hesitancy in holding that a stipulation like this, when vol-
untarily and understanding^ entered into by the shipper, is
binding upon him. The manifest object of such a provision is
358 Black v. W., St. L. & P. Ky. Co.
Opinion of the Court.
to force those claiming to be damaged by the carrier's negli-
gence, to promptly present their claims for adjustment while
the facts and circumstances upon which they are based are
fresh in the memories of parties and witnesses, and to prevent
being harassed or imposed upon by dishonest claimants. We
see nothing improper in requiring such claims to be verified
by affidavit.
The second branch of the proposition is not so free from
difficulty. A contract, ex vi termini, implies the assent of two
or more minds to the same proposition. It follows, therefore,
if one sign a written instrument containing mutual stipula-
tions between himself and another, without any knowledge
of its contents, there will not be in fact, in the strict sense of
the term, a contract between them, though in a legal sense
there may be. Where a party of mature years and sound
mind, being able to read and write, without any imposition or
artifice to throw him off his guard, deliberately signs a written
agreement without informing himself as to the nature of its
contents, he will nevertheless be bound, for in such case the
law will not permit him to allege, as matter of defence, his
ignorance of that which it was his duty to know, particularly
where the means of information are within his immediate
reach, and he neglects to avail himself of them. Applying
this elementary principle to the case in hand, it was clearly the
duty of appellant to have examined the contract in question,
and fully advised himself as to its contents, before signing it ;
and if, by a failure to perform this duty, he has sustained an
injury, he must suffer the consequences, unless such failure
was occasioned by the fraud or artifice of appellee, — and this,
we understand, appellant claims was the case.
Whether appellant was purposely misled and thrown off
iis guard by appellee, and thereby induced to sign the con-
•act in question, upon the hypothesis it was a mere pass
over appellee's road, as is claimed was the case by appel-
lant's counsel, is a question which the trial court seems to
Black v. W., St. L. & P. Ry. Co. 359
Opinion of the Court.
have ignored and studiously kept from the consideration of
the jury. This is clearly shown, both from the instructions
of the court and its exclusion of testimony bearing upon the
question. Indeed, the rulings of the trial court seem to have
been highly technical, and altogether unfavorable to the ap-
pellant. Even upon cross-examination, where great latitude
is generally allowed, the reins appear to have been very tightly
drawn, as is shown by the following rulings : The station
agent having been permitted to state, against the objection
of appellant, that $33.50 was the schedule rate per car for
the shipment of stock from Midland City to Chicago, at the
elate of this transaction, was asked, on cross-examination,
if the company had ever received that amount for a car of
freight from Midland City to Chicago, and, on objection, the
question, strange to say, was ruled improper. The follow-
ing cross-question propounded to this witness was also ruled
improper: "Did you tell him (appellant) when he came for
them (the cars) at $25, he would have to sign any contract
releasing the company from liability ?" Both the above ques-
tions, under the latitude of cross-examination, were clearly
proper, and the court erred in ruling otherwise. The errone-
ous ruling of the court, however, so far as the last two ques-
tions are concerned, is cured by the answers of the witness,
for notwithstanding they were ruled improper, the witness
proceeded to and did fully answer them, so that the appel-
lant was not at all prejudiced by the ruling.
With respect to the signing of the contract, the station
agent testified as follows : "I don't know whether the cattle
were all loaded or not when the contract was signed. I don't
remember when the train started. I went up to the pens and
told him to sign the contract, and that would pass him.
I can't say positive whether I told him to come down and
sign his passes. I don't remember that I called it a contract
when I asked him to sign it. When Black came down to sign
it, the cars were loaded, as well as I recollect. " Having made
360 Black v. W., St. L. & P. Ey. Co.
Opinion of the Court.
this statement, the witness was then asked, on cross-examina-
tion, the following question : "Did you tell Black what it was
when you had him sign it?" — which, on objection, was held
by the court improper, and the plaintiff excepted. As the
witness had stated, on his examination in chief, certain decla-
rations of his own, made at the time, and relating to the
signing of the alleged contract, it was clearly the right of
appellant, on cross-examination, to call out all that was said
at the same time on the same subject. Under the circum-
stances of this case, everything that was said, or done at the
time by either of the parties, relating to the signing of the
contract, was a part of the res gestce, and was proper to be
called out on cross-examination, and it was therefore clearly
error to disallow the question.
The appellant having been called as a witness, in rebuttal,
to give his version of what occurred before and at the time
of signing the contract in question, was asked the following
questions, namely: "What, if anything, was said about that
being a special contract with you at that time?" "Was this
paper (introduced in evidence) the contract you made to ship
the stock by the Wabash Railroad Company to Chicago?" —
both of which questions the court held improper, and refused
to allow them to be answered. Upon what principle the court
permitted the agent of appellee to testify as to all the matters
here inquired after, and yet absolutely closed the mouth of
appellant on the same subject, is difficult to conceive. For
instance, when Lane was on the stand, counsel for appellee,
referring to the written contract relied on as a defence in the
case, asked the witness this question: "Was this the con-
tract on which the cattle were shipped?" and the court, on
objection being made, held the question, as it should have
done, proper ; yet when appellant is asked substantially the
same question, he was not, as we have just seen, permitted
to answer it. We are aware of no rule of law that permits
such a diversity of ruling in the same case.
Black v. W., St. L. & P. By. Co. 361
Opinion of the Court.
It may be, the court, in so studiously and vigilantly sup-
pressing and keeping from the jury all that was attempted
to be shown by appellant as to what was said or passed be-
tween the parties either before or at the time of signing the
agreement, supposed it was merely applying the general prin-
ciple that parol evidence is not admissible for the purpose of
changing the terms of a written instrument ; but if so, the
court was clearly laboring under a misapprehension. The
object of the excluded evidence was not to change the terms
of an agreement which was admitted to have a valid exist-
ence, but rather to show that by reason of the circumstances
under which it was obtained, it was, in legal effect, no agree-
ment at all. It is just as well settled by the authorities that
parol evidence is admissible to impeach the validity of an in-
strument, as it is that such evidence will not be heard merely
for the purpose of changing or varying its terms. (Abbott
on Trial Evidence, 294; Kerr on Fraud and Mistake, 388.)
It is well said by Wharton, in his work on Evidence, section
931 : "Before the rules excluding parol testimony to vary
documents can be applied, we must determine a document
legally exists. That it exists must be shown by parol, and
the proof of such existence may be attacked by proof that
the execution of the document was a nullity, having been
coerced by duress, or elicited by fraud," etc. The well recog-
nized doctrine, here so clearly and forcibly announced, was
especially applicable to this case. There were, as is gener-
ally the case, two distinct and opposing theories upon which
it was being tried. The plaintiff was proceeding upon the
hypothesis that the verbal understanding reached between
appellant and the station agent, about the first of July, when
the latter informed him that he could furnish him the cars
at $25 a car, was the contract, and only contract, under
which the shipment was made ; that the instrument signed
by himself and the agent was executed on his part under the
belief that it was a mere pass over appellee's road, and that
3G2 Black v. W., St. L. & P. Rt. Co.
Mr. Justice Walker, dissenting.
this belief was induced by the conduct and misrepresentation
of the agent of appellee. The case, on the other hand, was
tried upon the theory that the instrument in question is a
valid and binding agreement, and as such affords the only
evidence of the contract between them for the transportation
and carriage of the cattle, — that all prior and cotemporaneous
declarations and statements of the parties were merged in
the written agreement. Now, whether the one or the other
of these theories was true, was clearly a matter of proof, and
the only way of establishing the truth or falsity of either
hypothesis was by showing just what passed between the
parties. This the court refused to permit, and we think it
was error, for which the case should be reversed.
The judgment of the Appellate Court is reversed, and the
cause remanded, with directions to that court to reverse the
judgment of the circuit court, and remand the cause for
further proceedings in conformity with this opinion.
Judgment reversed.
Mr. Justice Walker, dissenting in part :
I am unable to concur in that part of the opinion which
holds that the company may contract to relieve itself from
liability within less than the statutory period for a bar. It
is, in my judgment, opposed to public policy to permit a rail-
road company to impose in its shipping contract a condition
that a shipper suffering loss shall prepare, swear to and
serve a notice of the loss on an agent of the company in a
distant city in another State. It virtually places the shipper
at the mercy of the company. It may fix the charges when
stock is shipped without such a contract, at an oppressive
rate, and stock shipped under such a contract, at a fair and
reasonable rate, and give the shipper his choice. If the rate
charged when there is no such contract, is double or treble
that when made under such a contract, then the shipper is
virtually compelled to enter into such a contract. By such
C, K. I. & P. By. Co. v. Smith. 363
Syllabus.
means these bodies have the power to compel all shippers
to submit to such and almost any terms they may impose.
Power to make such contracts, if sanctioned, is liable to great
abuse, and, in many cases, to oppression and injustice. The
legislature has, in its wisdom, and in promotion of the gen-
eral welfare, prescribed the period of limitation of the various
actions, and I hold that parties are not capable of contracting
to shorten the period, or to impose hard and unreasonable
terms, before the party suffering loss can avail of the provi-
sions of the statute. I therefore dissent to that portion of
the opinion in this case.
Mr. Justice Scott, also dissenting.
Chicago, Eock Island and Pacific Kail way Company
v.
Oliver N. Smith.
Filed at Ottawa November 17, 1884.
1. Eight of way — grant — incidents to the grant as connected with
use intended. The owner of a twenty-acre lot being desirous of the con-
struction of a railroad over the same, made a deed to the railroad company,
reciting that "in consideration of the premises and sixty dollars," he granted,
"for the purpose of constructing a railroad, and for all purposes connected
with the construction and use of said railroad, " the right of way for the same,
one hundred feet wide, through the lot and other property, "to have, hold
and enjoy the land described, with the appurtenances, unto the said" grantee
"and its assigns, forever, for all uses and purposes, or in any way connected
with the construction, preservation, occupation and enjoyment of said rail-
road, " with a proviso for a reversion in case the same should cease to be used
for railroad purposes: Held, that as the casting of smoke, cinders, ashes,
sparks of fire, and the shaking of the soil, upon other parts of the lot, was a
necessary incident of the railroad, and inseparable from the running of trains
upon the railroad, the right to do these acts passed to the grantee and its
successors, by necessary implication from the express grant.
2. Where anything is granted, all the means to attain it, and all the fruits
and effects of it, are granted also, by presumption of law, and will pass in-
364 C, E. I. & P. Ey. Co. v. Smith.
Syllabus.
elusive, together with the thing, by the grant of the thing itself, without the
words cum pertinentiis, and any like words.
3. A mere conveyance of part of a tract of land may not give the grantee
the right to make any use of the part granted which will injuriously affect
the remaining portion, but when the grant is expressed to be for a particular
use, neither the grantor nor one claiming under him can object to such use,
and recover damages resulting therefrom.
4. Same — as to increased uses — whether embraced in grant. The grant
of a right of way over his land by a party, to a railway company, "for all uses
and purposes, or in any way connected with the construction, preservation,
occupation and enjoyment of said railroad," is broad enough to embrace all
uses for railroad purposes, however much increased, and by any other com-
panies authorized by law. If such grantee company consolidates, according
to law, with other companies, and thereby greatly increases the use of the
right of way, the owner, or his grantee, of adjoining lots can not recover
damages caused by such increased use.
5. Where a person conveys a right of way over his land, it will be con-
clusively presumed that all the damages to the balance of the land, past,
present and future, were included in the consideration paid him for his con-
veyance, the same as an assessment of damages on a condemnation would be
presumed to embrace.
6. Eminent domain — requisites of the petition for condemnation — as
to specifying the extent and character of the use. It is not necessary that
a petition for the condemnation of a right of way over a tract of land for a
railroad should state the petitioner's purposes fully and completely, giving
the number of tracks, and a purpose to allow other companies to use the
same. It is sufficient for the petition to show, generally, that the land is
needed for railroad purposes.
7. Same — measure of damages — present and prospective. Where a
right of way is condemned for public use over a tract of land, the owner will
be entitled to compensation not only for the value of the land taken, but also
for all damages to the residue of the tract, past, present and future, which
the public use may thereafter reasonably produce.
8. Recording daw — record of deed— notice to subsequent purchaser.
The record of a deed from the owner of land granting a right of way over the
same, one hundred feet wide, for any and all railroad purposes, the use for
which purposes injuriously affects other portions of the land adjoining the
right of way, is notice to any subsequent purchaser of adjoining lots, of the
prior grantee's rights, and such purchaser will occupy no better position than
his vendor or grantor.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county ; the Hon. Elliott Anthony, Judge, presiding.
C, R. I. & P. By. Co. v. Smith. 365
Statement of the case.
This was an action on the case, brought by Oliver N. Smith,
against the Chicago, Rock Island and Pacitic Railway Com-
pany, to recover for damages from the operation of its rail-
road. The declaration avers that the plaintiff is the owner in
fee of lot 10, of Tillotson's subdivision of that part of lot 11
lying west of the Chicago and Rock Island railroad ; that the
premises were of the value of $5000, and used by plaintiff
as a residence ; that the defendant's railroad tracks whose
operation is complained of, were'constructed January 1, 1879,
for use as a switching point, and have been so used since ;
that in the operation of the same, the defendant has unlaw-
fully, unjustly and injuriously caused and permitted to be
thrown and deposited upon the plaintiff's property, divers
large quantities of smoke, cinders, soot, ashes, sparks of fire,
and other noxious and injurious substances; that the soil is
shaken, and that the walls of his dwelling are cracked. The
plaintiff further avers, that said railroad tracks and switches
have been constructed, maintained and operated in such close
proximity to plaintiff's property, that necessarily, by reason
of such operation in the ordinary and usual way of operating
a steam railway for the purposes for which it was constructed
and maintained and operated, there has been cast upon his
property the substances complained of.
Except upon the question of damages, the facts as stated
below appear by stipulation of the parties.
The Rock Island and La Salle railroad was incorporated
by the General Assembly, February 27, 181:7. Its charter
authorized the company to construct, and during its con-
tinuance to maintain and continue, a railroad, with single or
double track, and with such appendages as might be deemed
necessary for the convenient use of the same. February 7,
1S51, the act of incorporation was amended, and the Chicago
and Rock Island railroad created, with the same powers and
privileges. August 20, 1866, the Chicago and Rock Island
railroad became, by consolidation with the Chicago, Rock
366 C, B. I. & P. By. Co. v. Smith.
Statement of the case.
Island and Pacific railroad of Iowa, merged into the consoli-
dated corporation known as the Chicago, Eock Island and
Pacific Eailroad Company, which latter corporation, on June
2, IS SO, became, by consolidation with various other corpo-
rations, the Chicago, Eock Island and Pacific Eailway Com-
pany, and vested with all the corporate and other franchises,
rights and privileges of each of its constituents. The Chicago
and Eock Island railroad acquired title to its right of way
whose use is complained of, in 1851, by deed from F. Burcky
and wife, to said company, which deed was recorded Novem-
ber 3, 1851. Burcky, the then owner of the whole of lot 11,
"being desirous for the construction of said railroad, "and
in consideration of the premises and $60, granted, "for the
purpose of constructing a railroad, and for all purposes con-
nected with the construction and use of said railroad," the
right of way for the same, one hundred feet wide, through
lot 11, and other property in Cook county, "to have, hold
and enjoy the land described, with the appurtenances, unto
the said grantee and its assigns, forever, for all uses and
purposes, or in any way connected with the construction,
preservation, occupation and enjoyment of said railroad,"
with a provision that if the grantee or its assigns should
"cease permanently to use said railroad so to be constructed,
and the same should be abandoned, so as not to be continued
over said premises," the land granted should revert to the
grantor. Subsequently, that portion of lot 11 lying west of
the railroad was subdivided into lots. October 1, 1873, the
plaintiff went into possession of one of these lots (10) under
a deed from the Tillotsons, who made the subdivision. The
railroad was there when he bought. He thinks that there
were at that time two main tracks and one side-track. The
company's first main track was laid upon this right of way
in the summer of 1852, and has existed since. Other tracks
have been built upon the right of way, but at what time,
except as to the two westerly side-tracks, does not appear.
C, B. I. & P. By. Co. v. Smith. 367
Brief for the Appellant.
These two were built within five years next before the com-
mencement of this action. All the tracks are within the
limits of the right of way conveyed by said deed, and are
owned, operated and controlled by the defendant.
The defendant filed a plea of the general issue, and of the
five, and twenty years statutes of limitation.
The plaintiff upon the trial claimed for damages from the
increased traffic upon the two main tracks, and from the
operation of the railway upon the two westerly side-tracks.
As to damages, he testified that cinders, ashes and smoke
are deposited upon the property, and go into the house when
the doors and windows are open ; that there is a vibration or
a jarring when a train passes; that the end of the house
next the railroad track has been plastered over twice ; that
when the mason put on the second coat, he told him to put
in plenty of hair, "so that it would not fall off again, which
he did ; " that within the last three or four years they have
had to dry clothes in the house.
There was a trial by the court without a jury ; a finding
for $350 damages ; motions for new trial and in arrest of
judgment made and overruled, and exceptions taken. Judg-
ment was entered, which was affirmed by the Appellate Court
for the First District, and the defendant took this appeal to
this court, the required certificate having been made.
Mr. Thos. F. Withrow, and Mr. J. C. Hutchins, for the
appellant :
Burcky's deed conveys the right of way, with the appurten-
ances, forever, for all purposes connected with the construc-
tion, preservation, occupation and enjoyment of the same, for
railway purposes, and therefore no right of action vests in any
subsequent purchaser of any portion of lot 11, for any result
flowing from the prudent operation of the railway. The grant
is to be taken most strongly against the grantor. Middleton
v. Pritchard, 3 Scam. 510; Dunjea v. Mayor, 62 N. Y. 592.
368 C, E. I. & P. By. Co. v. Smith.
Brief for the Appellant.
Any prohibition upon the use of the thing granted is void.
Craig v. Wells, 11 N. Y. 315.
The grant of a thing carries with it, impliedly, whatever is
necessary for enjoying the same. Touchstone, 89 ; 2 Black-
stone's Commentaries, 36 ; Aiken v. Boardman, 2 Mete. 457 ;
Johnson v. Jordan, id. 234 ; New Ipswich Factory v. Batch-
elder, 3 N. H. 190; Hodden v. Shoutz, 15 111. 581; Fitch v.
Johnson, 104 id. 121.
The deed has the same effect as a condemnation, in which
all past, present and future damages are assessed. Mills
on Eminent Domain, sec. 216 ; 1 Sutherland on Damages,
191 ; 3 id. 433 ; Railroad Co. v. Henry, 79 111. 290 ; Rail-
road Co. v. McKinley, 64 id. 338 ; Railroad Co. v. Railroad
Co. 67 id. 143, and 96 id. 274.
The damages assessed will be held to include all such dam-
age to the residue of the land as results from the reasonable
use of the improvement, past, present and future. Railroad
Co. v. Loeh, S Bradw. 627 ; Railroad Co. v. Carpenter, 14 111.
191 ; Jones v. Railroad Co. 68 id. 380 ; Railroad Co. v. Henry,
79 id. 290; Mix v. Railway Co. 67 id. 319; Railroad Co. v.
Birbeck, 70 id. 20S ; Railroad Co. v. McKinley, 64 id. 338.
As to the right to apply the road to additional uses con-
nected with the business, etc., of the road, see Railroad Co.
v. Dryden, 11 Kan. 186; Telegraph Co. v. Rich, 19 id. 517.
The conveyance operates as a complete release of all dam-
ages. Railroad Co. v. Cox, 91 111. 500; Conwell v. Railroad
Co. 81 id. 232.
The plaintiff in this case, inasmuch as the railroad was in
operation when he purchased, can not recover, because the
damages therefrom are presumed to have been considered
by him. Railroad Co. v. Co?nbs, 10 Bush, 393; Fowle v.
Railroad Co. 112 Mass. 334; Town of Troy v. Railroad Co.
3 Foster, 33 ; Railroad Co. v. Maker, 91 111. 312 ; Railroad
Co. v. Loeb, 8 Bradw. 627 ; City of Morrison v. Hinkson, 87
111. 587 ; Railway Co. v. McLaughlin, 77 id. 279. .
C, K. I. & P. Ry. Co. v. Smith. 369
Brief for the Appellee. Opinion of the Court.
Mr. H. 0. McDaid, for the appellee :
If this strip of land had been condemned, and the purposes
were stated fully and completely in the petition, so as to
apprise the owner of the number of tracks, and that petitioner
wished to permit other railroads to operate its tracks, it would
have acquired the right to operate its road carefully and
prudently, forever, without liability for further damages ; but
unless such uses were clearly specified, any excess or differ-
ence would render it liable for the increased burden. Rail-
road Co. v. Kidder, 21 111. 131 ; Railroad Co. v. Mitchell, 47
id. 165; Railroad Co. v. Birkett, 62 id. 165.
Burcky's deed did not convey an interest in other lands.
Railroad Co. v. Cox, 91 111. 505.
The effect of a grant of a right of way upon which to con-
struct a railroad, does not give a right to use the property so
as to injure another, and applies to a grantor, and in favor
of a remote grantee, as well as to a stranger. The grantor
by his deed never contemplated the permitting of the use of
this right of way to other corporations, so as to throw in-
creased burdens on the remainder of the tract. Railroad Co.
v. Cox, 91 111. 505; Tillotson v. Smith, 32 N. H. 90; Wash-
burn on Easements, (3d ed.) 343.
Anything that passes as an appurtenance must be in esse,
and touch or depend upon the principal estate at the execu-
tion and delivery of the grant thereof. Washburn on Ease-
ments, 35, 51 ; Swazey v. Brooks, 34 Vt. 451 ; Dunkle v.
Railroad Co. 4 Foster, 489; Tabor v. Bradley, 18 N. Y. 109.
Mr. Justice Sheldon delivered the opinion of the Court :
For the determination of this case we find that we need
but to consider the one question of the effect of the deed of
Burcky, made by him to the railroad company, although
other questions have been urged before us.
The right of way upon which the railroad tracks in ques-
tion are laid, was granted through lot 11, containing twenty
24—111 III.
370 C, E. I. & P. Ey. Co. v. Smith.
Opinion of the Court.
acres, by Burcky, the then owner of the whole of the lot, for
the purpose of constructing a railroad upon it, and to be held
and enjoyed forever, for all the uses and purposes in any
way connected with the construction, preservation, occupa-
tion and enjoyment of the railroad. So precisely was the
grant for this very purpose, and none other, that there was
express provision that cesser of use for such purpose should
make the land granted, revert to the grantor. The casting
of smoke, cinders, ashes, sparks of fire, and the shaking of
the soil, (the thing complained of) upon lot 11, outside of the
one hundred feet right of way, was a necessary incident of the
operation of the railroad. Beiug such, and inseparable from
the running of trains upon the railroad, it was consented
to, permitted and authorized by Burcky, for a compensation
paid to him, by the deed which he made containing the grant.
The deed did not, in express terms, give such consent, per-
mission and authority, but it did so by necessary impli-
cation, in that the acts complained of were the necessary
incident and accompaniment of that which was granted by
the deed, — they resulted necessarily in the carrying into
effect the main grant. It is abundantly settled that what the
law expressly authorizes to be done can not be complained of
as a public nuisance, and we do not perceive how any more
can a private nuisance be predicated of that which the indi-
vidual affected by it has, for value paid to him, consented to
and authorized to be done.
As to the right to cast these substances complained of, upon
plaintiff's land, being given by implication by the Burcky deed,
we find it laid down by Blackstone, 2 Com. 36 : "For when
* the law doth give anything to one, it giveth, impliedly, what-
soever is necessary for enjoying the same." And in Touch-
stone, 89: "When anything is granted, all the means to
attain it, and all the fruits and effects of it, are granted also,
and shall pass inclusive, together with the thing, by the grant
of the thing itself, without the words cum pertinentiis, or any
C., K. I. & P. By. Co. v. Smith. 371
Opinion of the Court.
such like words." In Aiken v. Boardman, 2 Mete. 463, we
find the rule thus expressed : "A grant being made for a
valuable consideration, it shall be presumed that the grantor
intended to convey, and the grantee expected to receive, *the
full benefit of it, and therefore that the grantor not only con-
veyed the thing specifically described, but all other things, so
far as it was in his power to pass them, which were necessary
to the enjoyment of the thing granted." And see Matter of
City of Buffalo, 68 N. Y. 172 ; Johnson v. Jordan, 2 Mete. 210.
We regard the deed from Burcky, for the public use of this
railroad, as having the same effect upon the rights of the par-
ties, with respect to lot 11, that a condemnation of the same
land for such public use would have had, — the one being a
voluntary conveyance made for a public use, and the other
amounting to a statutory conveyance for such use. Had this
right of way been acquired by condemnation, Burcky would
have had made to him compensation for the value of the strijD
of land one hundred feet wide taken, and also an assessment
of all the damages to the residue of lot 11 to result from the
operation of the railroad. The rule is, that the appraise-
ment of damages in a case of condemnation embraces all
past, present and future damages which the improvement
may thereafter reasonably produce. Mills on Eminent Do-
main, sec. 216, and cases cited; Chicago and Alton R. R. Co.
v. Springfield and Northwestern R. R. Co. 67 111. 142 ; Keiths-
burg and Eastern R. R. Co. v. Henry, 79 id. 290.
It follows, that had the railroad company condemned this
right of way as against Burcky, who was the owner of the
whole tract, no recovery could have been had for the damages
here sued for. They would have been included in the assess-
ment of damages made on the condemnation, and whether
in fact included or not, they would be conclusively presumed
to have been included. The same result, we conceive, follows
from Burcky's voluntary conveyance of the right of way. It
is to be presumed that the contingent damages to the residue
372 C, E. I. & P. Ey. Co. v. Smith.
Opinion of the Court.
of the lot which might arise from the prudent operation of the
railroad, were taken into account in fixing the price. (See
No?ris v. Vermont Central R. R. Co. 28 Vt. 99, and Conwell
v. Railroad Co. 81 111. 233.) And herein would seem to be
found sufficient answer to the position of appellee's counsel
that the whole effect of Burcky's deed must be confined to
the one hundred feet wide strip of land which it conveys by
metes and bounds, and can have no extra-territorial opera-
tion, so as to give sanction to injuriously affecting any land
of the grantor outside of the one hundred feet strip. In a
case of condemnation there certainly would have followed the
right to thus injuriously affect the residue of a tract of land
of which a portion had been taken, without liability for dam-
age, and the result from Burcky's deed we hold to be the
same.
The case is, put by appellee's counsel that a simple con-
veyance of land in fee simple, without any reference to its
use, would not authorize the injuriously affecting of any other
land, and it then is asked if it can be claimed that when a
less estate than a fee is granted, a greater effect results than
if a fee is granted. The fallacy appears obvious. A mere
conveyance of a tract of land might not give to the grantee
the right to make any use of it which would injuriously affect
any other land, for the law would attach the same condition
as in general exists with respect to the holding of all land, —
that the owner shall so use it as not to produce injury to
another ; but in the case before us there is the grant for this
very use itself which will injuriously affect other land, and
for no other use. The deed permits and authorizes the inju-
rious use for a consideration paid, thus making the difference
between the cases supposed, in their application to this case,
of the denial of an injurious use of land and the permitting
of the injurious use.
With respect to the effect of a condemnation, which has
been remarked upon, it is suggested by appellee's counsel
C, K. I. & P. Ey. Co. v. Smith. 373
Opinion of the Court.
tliat in order to such effect the petition for condemnation
should have stated its purposes fully and completely; that
it should have described the number of the tracks, and that
the company wished to permit other railroad companies to
operate its tracks, etc. We do not understand that to have
been necessary, or that more was required in this regard than
that the petition should show that the land was needed for
railroad purposes. But without respect to what may be neces-
sary in a petition for condemnation, the language of this deed
is broad enough to Cover any manner of use for railroad pur-
poses, and without limitation as to the company.
But it is said there are here increased uses of the right of
way, in respect of which plaintiff may recover ; that the deed
of Burcky was made to the Chicago and Bock Island com-
pany, and that the present contention arises upon the result
of the operation of the Chicago, Bock Island and Pacific
Bailway Company, a corporation formed by uniting several
other railroad companies, and that it could not have been
within the intention of the grant to permit divers other rail-
road companies, under the license of the Chicago and Bock
Island company, to enter upon this right of way and assert
rights of easement in this land. Permission to the use by
other companies, and consolidations with other companies,
are both authorized by statute. In dealing with the corpo-
ration, Burcky must be held to have had in contemplation
the possible exercise of such corporate rights, and to have
contracted with reference thereto. As before observed, the
language of the grant was most broad and unlimited. It
was to hold and enjoy the right of way "forever, for all uses
and purposes, or in any way connected with the construction,
preservation, occupation and enjoyment of said railroad."
We think all uses of the railroad for railroad purposes, how-
ever much increased, and by whomever, which are authorized
by law, must be held to come within the terms and inten-
tion of the grant. Burcky being the owner of the whole of
374: Bell v. Johnson.
Syllabus.
lot 11 at the time of the making of his deed, and his deed
being duly recorded, it was notice of the grantee's rights to
any subsequent purchaser of a portion of the lot; and such
subsequent purchaser, or one acquiring a subsequent interest,
would not, it is hardly necessary to remark, stand in any
better situation with regard thereto than would Burcky him-
self had he continued to be the owner of the whole and were
the plaintiff in the suit.
Several propositions of law were asked by both parties. It
follows, from what has been said, that so far as they related
to the question which has been considered, there was error
in holding those asked by the plaintiff and in refusing those
asked by the defendant.
The judgment of the Appellate Court will be reversed, and
the cause remanded.
Judgment reversed.
Joseph T. Bell
v.
James H. Johnson.
Filed at Ottawa November 17, 1884. «
1. Fraud — who may question a fraudulent transaction. Only the per-
son against whom a fraud is committed, or a person who is injured by it, can
maintain a bill to have the fraudulent transaction impeached.
2. Limitation — as to bill of review, or a bill to impeach a former
decree for fraud. A bill of review is barred in the same time as a writ of
error, which is five years, unless there are disabilities. The rule applies to
a cross-bill which seeks to have a former decree impeached for fraud.
3. Same— when avoAling on demurrer. In equity the Statute of Limita-
tions may be availed of, on demurrer to a bill, where the bar appears on the
face of the bill, unless an equitable excuse is alleged in the bill to avoid
the bar.
4. Tax title — prerequisites— judgment and precept. In order to sus-
tain a tax deed as a muniment of title, a valid judgment and attested record
or precept must be shown. This is indispensable to the validity of the deed.
Bell v. Johnson. 375
Brief for the Appellant.
5. Same— requisites to a valid precept. The Eevenue law requires the
county clerk, after the judgment for taxes is entered in the judgment book,
to make another record of the lands, which is a transcript of the judgment
record, embracing the convening order, notice, and list of the lands against
which judgment is rendered, and certify that it is correct; and this attested
record is the process under and by the authority of which the collector and
clerk are empowered to make the sale. Without this attested copy of the
judgment record there is no authority to sell.
6. Cloud upon title — tax deed — terms on setting it aside. Where a
tax deed is invalid for want of a proper precept or attested record, a court of
equity has jurisdiction to declare it void, as a cloud upon the owner's title,
and require the latter to refund the money paid at the tax sale, and all taxes
paid by the purchaser or his assignee, with legal interest.
Appeal from the Circuit Court of Carroll county ; the Hon.
John V. Eustace, Judge, presiding.
Messrs. Smith & Lee, and Mr. M. Y. Johnson, for the
appellant :
A party will not be permitted to question a transaction for
fraud which in no way affects his interest.
Equity will consider the money advanced to purchase the
outstanding title, as an advance for the benefit of the ward,
and not for the conservator's own benefit, giving him usually
a lien on the property for his reimbursement, being analogous
to the case of trustee and cestui que trust. Thorp v. McCul-
lum, 1 Gilm. 614; Pensoneau v. Blakely, 14 111. 15; Bobbins
v. Butler, 24 id. 387; King v. Cushman, 41 id. 31 ; Taylor v.
Taylor, 4 Gilm. 303.
Under the law of 1853 the sheriff was the officer required
to execute the tax deed, — under the consolidated act of 1872
the county clerk was made the officer to execute the tax deed.
(2 Gross' Stat. p. 367, sec. 684.) Section 688, on the same
page, made the previous six sections of that act applicable
to all sales of real estate for taxes made before that act took
effect ; and section 689, on the same page, made tax deeds
prima facie evidence of seven distinct things, — of every pre-
requisite, in fact, except the judgment and precept, the notice
376 Bell v. Johnson.
Brief for the Appellee. Opinion of the Court.
required to be given by the purchaser, or assignee of the pur-
chaser, to the person in possession or occupancy of the land
purchased, and to the person in whose name the land was
taxed, and the affidavit required to be made of compliance
with the statute as to notices.
Messrs. Hunter & Hoffman, for the appellee :
A tax deed is void unless founded on a valid judgment and
precept. Eagan v. Connelly, 107 111. 458 ; Gage v. Lightburn,
93 id. 248 ; Bailey v. Doolittle, 24 id. 577 ; Dukes v. Rowley,
id. 210 ; Fitch v. PincJmrd, 4t Scam. 69.
A tax title is a purely technical, as contradistinguished
from a meritorious, title, and depends for its validity upon a
strict compliance with the statute. Skinner v. Fulton, 39 111.
484; Altes v. Kinkier, 36 id. 265; Charles v. Waugh, 35 id.
315; Clark v. Lewis, id. 417.
Appellant shows no excuse for his delay in attempting to
get possession, which alone ought to defeat the tax title.
Oakley v. Hurlbut, 100 111. 204.
Where a party has once conveyed all the interest he has
in land, a subsequent quitclaim deed from him will pass no
title. Garriek v. Chamberlain, 97 111. 620.
An ordinary quitclaim deed conveys whatever interest the
grantor has at the time of making the same ; and if he has no
interest at the time, then it can not operate, by way of estop-
pel, to prevent him, or those claiming under him, from assert-
ing a subsequently acquired title. Frink v. Darst, 14 111. 304.
The complainant in the cross-bill is not in possession,
hence it will not lie to clear or test title. Oakley v. Hurlbut,
100 111. 204.
Mr. Justice Walker delivered the opinion of the Court :
This was a bill filed in the Carroll circuit court, to have a
tax deed set aside and declared void, as a cloud on complain-
ant's title to a forty-acre tract of land in that county. The
Bell v. Johnson. 377
Opinion of the Court.
bill alleges that the deed is void for the want of a valid judg-
ment and precept to support the sale for taxes. Defendant
answered the bill, and exceptions were filed to it, and sus-
tained as to all but the tax deed. On leave of the court,
defendant filed a cross-bill, alleging that the land was regu-
larly sold by the collector on the* 21st of May, 1871, for the
taxes for the year 1870 ; that Francis Bell, the father of de-
fendant, became the purchaser; that he gave the requisite
notice to entitle him to a deed; that he sold and assigned
the certificate of purchase to defendant ; that the proper
affidavit of notice was made, filed and delivered to the county
clerk, in pursuance to the requirements of the law ; that the
county clerk made and delivered to him a tax deed ; that
there was rendered a valid judgment against the land, and a
like precept was duly issued, under which the land was sold,
and a paramount title thereby vested in him. The cross-bill
further alleges, that about the 2Sth day of August, 1873,
Bobert Croom, who was the patentee, and living on the land,
executed and delivered to an attorney at law, by the name of
Orrin Woodruff, a mortgage on the forty acres in controversy,
to secure a note given by him to Woodruff for $500, as an
attorney's fee, for which Woodruff agreed to file a bill and
conduct the suit for the purpose of setting aside and annull-
ing defendant's tax deed ; that Woodruff did file such a bill,
which Croom voluntarily dismissed after being on the docket
for several terms ; that Croom was weak-minded, and was
overreached by Woodruff in obtaining the note and mortgage ;
that Woodruff did not render the services under the contract,
as agreed, and fearing to attempt to enforce such an extor-
tionate fee, he made a colorable assignment of the note and
mortgage to one Albert J. Jackson, in whose name foreclosure
proceedings were commenced, and a decree of foreclosure
was obtained after a partial defence, and on Croom's answer,
which it is alleged was obtained by fraud, covin and misrep-
resentation by Woodruff, Jackson, and others ; that on the
378 Bell v. Johnson.
Opinion of the Court.
22d day of March, 1880, Croom and wife commenced a suit
in chancery to impeach and set aside the decree of foreclos-
ure, and the deeds made thereunder, charging that the deeds
had been fraudulently obtained ; that Woodruff was at all
times the owner in fact of the mortgage, and was the real
party in interest in all these proceedings ; that all subsequent
purchasers had notice of Woodruff's fraudulent acts, insti-
tuted for the purpose of defrauding Croom out of the land,
and they had joined and conspired with him for that purpose ;
that during the pendency of that suit Johnson had been ap-
pointed conservator of Croom, and whilst he was conservator
he had purchased the title of Early for $700, and had the
conveyance made to himself, in his own name, and claims to
be the absolute owner of the land, and he claims defendant's
tax deed should be set aside as a cloud on his title ; that
having procured a conveyance to himself, he had dismissed
the suit brought by Croom. It is also alleged, that on the
31st day of October, 1879, and before Croom became insane,
and before complainant was appointed conservator for Croom,
the latter conveyed the land to defendant by a quitclaim deed,
in cance 
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